SC Administrative Law Court Decisions

This consolidated contested case matter arises from the decision of the South Carolina Department of Health and Environmental Control (Department) to grant Permit #18,135 AG, for the construction of a chicken broiler facility, and Permit #18,224 AG, for the construction of a dead bird composter, to Raymond E. Wells, Jr., (Wells). These permits were appealed separately, but were consolidated by Order of this court.

The construction of these facilities is proposed in the Bloomville community of Clarendon County, South Carolina. Petitioners are landowners who own property adjacent to or close to the proposed site. They seek denial of the permit, contending that the poultry facility is situated too close to their properties, homes and a large fresh tomato packinghouse, and that the routine discharge of odors, dust, flies and airborne pathogens from the poultry operation will cause them harm and create an unprecedented food safety hazard which will force the closure of the tomato operation.

After notice to the parties, a hearing was held on November 24, 25, and 26, 1997, at the Administrative Law Judge Division Offices, Edgar A. Brown Building, 1205 Pendleton Street, Columbia, South Carolina, during which the parties presented testimony and introduced exhibits, all of which have been carefully reviewed.

For the following reasons, I conclude that the permit should be denied.

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

Statement of the Case/Procedural History

Wells submitted an application and Waste Management Plan with the Department for a chicken broiler facility to be constructed in Clarendon County, South Carolina. The site was inspected by the Department and the Soil Conservation Service (Service), and a plan was developed for Wells by the United States Department of Agriculture (USDA). This application was reviewed by the Department's Division of Water Pollution Control pursuant to the provisions of the S.C. Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (Rev. 1987 & Supp. 1995), S.C. Code Regs. § 61-9 (Supp. 1995), and the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" manual (December 1, 1994) (guidelines). Notification letters of the proposed construction were sent to the two landowners whose adjoining property lines fell within 1,000 feet of the facility proposed by Wells.

The Department issued State Construction Permit #18,135-AG to Wells on July 23, 1996, and State Construction Permit #18,224-AG to Wells on February 11, 1997. Petitioners Haley Farms, Everette M. Haley, and Anne H. Haley (collectively referred to as Haley or Petitioners) filed a request with the Department for administrative review by the Administrative Law Judge Division regarding Permit #18,135-AG on April 16, 1997; the Department timely filed this case with the Administrative Law Judge Division. The remaining Petitioners moved to intervene in the matter on May 14, 1997. Haley and the intervenors then appealed Permit #18,224-AG on July 3, 1997. The motion to intervene was granted, and the two appeals were consolidated by Order of this court on August 19, 1997.

At the adjudicatory hearing, the court heard the testimony of nineteen witnesses and admitted numerous exhibits into evidence. Petitioners presented the testimony of food safety expert Dr. John Carpenter; animal waste management expert Dr. Ronald Miner; meteorologist John Purvis; Clemson extension specialist Dr. James Rushing; experienced produce buyers Mark Whisnant, Louis Ledlow and Buddy McEntire; Petitioners Everette and Anne Haley, Peggy Baxley, and Vonnie Ridgeway; and neighbors of Mr. Wells' existing poultry operation, Maggie Conyers and Andrew Dortch. Respondent Wells testified and presented infectious disease expert Dr. Charles Bryan, Natural Resource Conservation Service agent Neil Richardson, DHEC health hazard assessment expert Dr. John Brown, and Goldkist poultry representative John King. The Department presented the testimony of an agricultural permitting expert and Wells permit writer Henry Gibson. The parties submitted proposed findings of fact and conclusions of law which have been given careful consideration.

Did the Department properly issue to Raymond E. Wells, Jr. permits to construct a waste collection system and a dead bird composter to raise chickens on his farm in Clarendon County?

Positions of the Parties

Petitioners assert that the permits should be denied because: (1) the Department has no regulations for permitting agricultural facilities; (2) the facility will be located closer than 1,000 feet from an adjacent property line; (3) construction and operation of the facility will constitute a nuisance and result in trespass on the Petitioners' properties through noxious odors emanating from the facility; (4) construction and operation of the facility will result in the devastation of the Haley tomato packing business located north-northwest of the site because of the odors and the suspicion of contamination of the tomatoes with the salmonella bacterium, whether or not actual contamination of the tomatoes will occur; (5) construction and operation of the facility will pose a risk to the public health through contamination of the tomatoes with salmonella bacterium.

Additionally, Petitioners allege that by granting the permit, the Department has acted in contravention of the federal Clean Water Act, 33 U.S.C. §§ 1251, et seq., the South Carolina Pollution Control Act, S.C. Code Ann. §§ 48-1-10, et seq., the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310, et seq., and 24 S.C. Code Ann. Regs. 61-9 (Supp. 1997), as well as the Department's "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control - Site Selection Criteria 1994."

The Department and Wells assert the permit is properly granted. In their view, the restrictions on the permit prevent the dangers the Petitioners assert, and the broiler houses will not contravene any federal or State law, regulation, or guideline.

Effect of Absence of Regulations Governing Permits

The permits are to construct a four-barn, 600,000-bird broiler chicken facility; to manage by land application the 900 tons of chicken waste to be generated per year; and to construct a dead-bird composter at the facility. They were issued to Wells pursuant to the provisions of the South Carolina Pollution Control Act, S.C. Code Sections 48-1-10, et seq., which requires that a permit be issued by the Department prior to construction of such a facility and any discharge of waste from that facility to the environment.

S.C. Code Ann. § 48-1-90 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 in compliance with a permit issued by the Department.

Thus, the operation of this commercial poultry 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 Wells site is prohibited.

In order to exercise its permitting authority under the Pollution Control Act, the Department is required to establish the binding standards for such permitted activity by duly promulgated regulations. S.C. Code Ann. § 48-1-30 provides, in part:

The Department shall promulgate regulations to implement this chapter to govern the procedure of the Department with respect to

meetings, hearings, filing of reports, the issuance of permits and all other matters relating to procedure.

(Emphasis added.) 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.

Despite this statutory mandate, the Department has failed to promulgate any regulations governing the procedure for the issuance of permits for facilities such as the facility in question.⁽¹⁾ 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 creatures of statute, a regulatory body is possessed of only those powers expressly conferred or necessarily implied for it to effectively fulfill the duties with which it is charged. 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). Unlike the circumstances in Edisto Aquaculture Corporation v. South Carolina Wildlife and Marine Resources Department, 311 S.C. 37, 426 S.E.2d 753 (1993), where a different underlying statute contained no mandatory language with respect to the promulgation of implementing regulations, the General Assembly has mandated in this instance that the Department promulgate regulations to implement its permitting authority under the Pollution Control Act. The Department has not complied with this statutory directive. Issuance by the Department of the subject permit to construct and operate an industrial poultry facility which will collect and discharge into the environment the waste equivalent of a community of 85,714 people, in the absence of the promulgation of the mandatory regulations required for such permits, arguably exceeds the Department's authority and results in an invalid permit pursuant to the authorities cited above. The issuance of permits by the Department in the absence of enforceable regulations providing standards for their approval and implementation may not only exceed the Department's delegated authority 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 environment, their quality of life and the use of their property. See Stono River Environmental Association v. S.C. Dept. 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). In addition to the public interest in preserving the environment which underlies the Pollution Control Act, important private rights of the Petitioners and other neighbors of the proposed Wells facility are at stake as well in the issuance of this permit by the Department, specifically including their right to a healthy environment and their right to the unencumbered use and enjoyment of their property. In the absence of duly promulgated regulations establishing binding norms for the siting, design and operation of agricultural animal facilities, the interests of Petitioners and the public are unprotected. Since the Department has failed to promulgate binding regulations as required, its permitting authority must be more, not less, circumscribed, as the statute prohibits the waste disposal activity except in compliance with a permit. It would indeed be perverse

to suggest to the contrary that the permitting authority of the Department is broader where it has failed to comply with its statutory duty.

Applicability of the Permitting Guidelines

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 proposed Wells facility: the "Environmental Guidelines and Procedures for Animal Operations and Peach Packers in South Carolina," dated April, 1985, and the December 1, 1994, "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control." Neither of these guidance documents were duly promulgated as regulations pursuant to the South Carolina Administrative Procedures Act (APA), S.C. Code Ann. § 1-23-120. Thus, as discussed above, an argument could be made that their provisions are unenforceable by the Department. The APA requires that "each agency statement of general public applicability that implements or prescribes law or policy or practice requirements of any agency" be submitted to the General Assembly for review to allow legislative approval, rejection, modification or acquiescence. S. C. Code Ann. § 1-23-10 (4). Clearly, the two guidance documents, relied upon by the staff of the Department for review of the permit application at issue herein were not promulgated nor approved as required by the APA.

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. South Carolina Tax Commission, 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 weight which should be afforded these guidelines in this proceedings.

Prior to the Restructuring Act, Act No. 181 of 1993, which transferred jurisdiction from the Department and its hired hearing officers to the Administrative Law Judge Division to conduct contested case hearings and issue final orders and decisions in environmental permitting matters, the Department applied the "Guidelines" and "Permitting Requirements" and made its own interpretation of their meaning. In an appeal to the circuit court from one of the Department's final decisions, the court would give the traditional deference and consideration accorded agency interpretations of their operative statutes, not to be "overruled absent compelling reasons." Dunton v. South Carolina Board of Examiners in Optometry, 291 S.C. 221, 353 S.E.2d 132, 133 (1987); Faile v. South Carolina Employment Security Commission, 267 S.C. 536, 230 S.E.2d 219 (1976).

Subsequent to the passage of the Restructuring Act, the Administrative Law Judge who now tries the contested case interprets the applicable statutory and regulatory provisions together with any guidelines published by the Department. The controlling issue which the Administrative Law Judge must address in interpreting a statute or regulation is to determine what the legislature intended. Laird v. Nationwide Ins. Co., 243 S.C. 388, 395 S.E. 2d 206 (1964). Depending upon the nature of the language under review, the Department's view may or may not be entitled to deference. No deference to the Department's position is warranted where the language in a statute or regulation presents a clear meaning. Glens Falls Ins. Co. v. City of Columbia, 242 S.C. 237, 130 S.E. 2d 573 (1963). Further, the clear and definite meaning of a statute will always be applied despite an agency's contrary but consistently followed position. Davidson v. Eastern Fire & Casualty Ins. Co., 245 S.C. 472, 141 S.E. 2d 135 (1965). In applying the rules of construction prior to the restructuring of state government in South Carolina in 1993, decisional law required the reviewing court to give the most respectful consideration to the interpretation of a statute by the agency charged with its administration. Stephenson Finance Co. v. South Carolina Tax Comm'n, 242 S.C. 98, 130 S.E.2d 72 (1963). However, that degree of respect rose to one of "great weight" only if the agency

position had " been acquiesced in by the Legislature for a long period of time". Etiwan Fertilizer Co. v. S. C. Tax Comm'n, 217 S.C. 354, 60 S.E. 2d 682 (1950).

The stature accorded by this court to the Department's agricultural guidelines and permitting requirements, which is the interpretation by the Department of its own operative statute, is dependent on the integrity of the guidelines. They can be a two-edged sword for the Department, in that they provide support for staff decisions on the issuance of permits and at the same time limit the latitude of the Department in authorizing permits. Simply put, the Department must abide by its own standards and may not act arbitrarily in failing to follow its own guidelines and requirements in its permitting process. 330 Concord Street Neighborhood Association v. Campsen, 309 S.C. 514, 424 S.E. 2d 538 (Ct. App. 1992); Triska v. Dept. of Health and Environmental Control, 292 S.C. 190, 355 S.E. 2d 531 (1987). Further, the Administrative Law Judge in making the final administrative decision under the APA, 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 legislature 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

The guidance documents recognize that proper site selection is the primary means for minimizing the impact on the public and the environment of offensive odors and other transport nuisances associated with animal confinement facilities. In pertinent part, the guidelines set forth "Site Selection Criteria" for all new facilities managing animal wastes such as the proposed Wells poultry facility, 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 "Surface 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 transport 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. As Petitioners' odor expert, Dr. Miner, testified, the 1,000 foot setback provides minimum protection for neighbors. In order for the Department and Wells to sustain their burden of proof in this proceeding, a preponderance of the evidence must establish that the site for the proposed Wells facility comports with these siting criteria.

With respect to the 1,000-foot setback standard, the plain and unambiguous language of the Siting Criteria requires that the production unit--here, the poultry barns--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 setback standard contained 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 Wells poultry barns are to be located a mere 200 feet from Vonnie Ridgeway and Peggy Baxley's lot lines and no written waiver or approval has been executed. This location directly contravenes the unambiguous and objective 1,000-foot standard of the Department's own published guidelines and interpretation of the Act.

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 Commission, 317 S.C. 434, 454 S.E.2d 890, 892 (1995); Sutherland, Statutory Construction, Section 46.01, "The Plain Meaning Rule," (5th Ed.). 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 reluctance of the Department to actually enforce its own clear standard out of some fear that a mere 'guideline' would not 'hold up' in place of a regulation does not justify granting 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 decision by the Department to issue the permit evidences a total disregard by the Department to comport with its own siting criteria. The evidence fails to establish that the Department took any steps to assure that the location of the Wells facility would prevent or even minimize the transport nuisance impacts on nearby residents in accordance with the Department's own guidelines.

I find that the generation of noxious odors, dust and contaminants will occur with certainty as a result of the normal biological process of the decay of poultry waste. The offensive, undesirable and injurious character of such odors and other discharges is beyond serious question as reflected by the testimony of witnesses living near Mr. Wells' existing poultry facilities, Haley Farms' produce customers and the testimony of the experts. The level of such odors may be worse in the event of spills or excess moisture on the litter--not an unusual event. Even optimal management practices will not eliminate these normal odors associated with poultry litter. The Department has taken the position in response to odor complaints about Mr. Wells' existing facility that such odors were normal incidents of a poultry facility and that no agency action was available so long as the facility was operating in compliance with its permit. The evidence clearly establishes--without serious dispute-- that pungent, acrid, ammonia-like odors, dust and airborne contaminants will routinely be generated during the normal and proper operation of this poultry facility. The evidence also establishes that these noxious odors will routinely be exhausted from the poultry barns into the ambient air as a result of the routine operation of the barn ventilation system. Petitioners' expert, Dr. Ronald Miner, a leading researcher and advisor to agricultural interests on animal waste management and odor control, presented the unchallenged opinion that the residences and property of Petitioners would inevitably and without doubt be exposed to the characteristic odors and other emissions emitted from the proposed barns as well as odors from nearby land application sites. No witness contradicted Dr. Miner's opinion. Further, State Climatologist Emeritus John Purvis, expressed the opinion that prevailing winds, the topography of the locale, and the meteorological phenomena of seasonal air stagnation and daily ground inversions would inevitably and without doubt cause odors from the Wells barns to travel to the Petitioners' properties.

In evaluating Wells' application for the permit, Henry Gibson, the staff person at the Department who wrote the permit, never visited the proposed site, nor was he aware of the proximity of the Wells property to the site of Petitioners' residences, property lines and the Haley Farms packinghouse. Moreover, despite the fact that the site selection criteria require that transport nuisances be minimized, the staff at the Department never conducted nor prepared an evaluation of the likely transport of odors or other contaminants from the proposed site to neighboring residences, nor did they prepare an evaluation of the impact of prevailing winds on transport nuisances. Furthermore, staff failed to evaluate the availability of alternative sites despite evidence that the extensive Wells properties afforded other locations with superior protection for neighbors. Neither the Department nor Wells presented any evidence that the Department considered imposing conditions on the permit which would require containment and treatment of airborne contaminants if Wells insisted on a site so close to his neighbors. Dr. Miner expressed the view that such a technological fix, while costly, was the legitimate responsibility of the owner for the protection of the community absent an adequate site. Finally, no evidence whatsoever was offered by the Department or Wells to warrant departure from the 1,000-foot setback standard, the Department's own guide, nor to justify a mere 200-foot buffer in its place. If, as the Department suggests, the 1,000-foot standard is a guideline which may be departed from, it offered no evidence of any rational basis at this site for justifying such a radical reduction of this important 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 is abuse of agency discretion. I conclude that the preponderance of the evidence warrants denial of this permit.

Evaluation of Other Factors

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 Wells argue that the Administrative Law Judge Division does not have jurisdiction in an action to grant or deny an agricultural permitting permit to consider the emanation of offensive odors and dust 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 and dust emissions 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.

Moreover, although an action lies with the judicial branch in its equity jurisdiction to enjoin anticipatory nuisances which may arise because the creation and operation of a facility will be unhealthy and unsightly, or will result in odors, noise, flies and vermin in the community, the existence of a civil remedy does not prevent the Administrative Law Judge from considering nuisance factors in the granting or denial of a permit. In Roach v. Combined Utility Commission of the City of Easley, 290 S.C. 437, 351 S.E.2d 168 (Ct. App. 1986), anticipatory nuisance was defined as an act, occupation, or structure which is not a nuisance per se, but which may become a nuisance by reason of circumstances, location, or surroundings. In that case, various property owners brought an action to enjoin the construction of a waste water treatment plant by the city of Easley's combined utility commission. The Court of Appeals in a previous decision, Neal v. Darby, 282 S.C. 277, 318 S.E.2d 18 (Ct. App. 1984), had held that "equity will not interfere where the anticipated nuisance is doubtful, contingent, or conjectural....it must appear that a nuisance will inevitably or necessarily result from the act or thing which it is sought to enjoin." In Roach, permits had already been issued by the Department to begin construction of the facility in question and an action for injunctive relief was the only action available to the parties. In the decision, the Court of Appeals refused to enjoin the construction of the plant, noting that "this court cannot substitute its judgment for that of the administrative authorities." 351 S.E.2d at 170. The court implied that the facts applicable to odors and alternative sites had been established in the administrative arena, and refused to revisit the findings of the Department in its issuance of the permit. Therefore, once the permit has been approved and granted, the equitable remedy of injunction is of limited use to neighbors of the permitted facility. This contested case hearing, therefore, is a proper forum to consider the effect of "nuisance factors" on neighbors of the proposed facility.

The Court of Appeals, in a trespass and nuisance action against a mobile home corporation which allegedly maintained its sewage treatment lagoon in such a manner that it emitted offensive odors and leaked sewage in adjoining fish pond causing fish kill, quoted the Supreme Court in Strong v. Winn-Dixie Stores, Inc., 240 S.C. 244, 125 S.E.2d 628, 632 (1962), in holding that "anything" working inconvenience or damage, or interfering with the enjoyment of life or property is a nuisance. Lever v. Wilder Mobile Homes, Inc., 283 S.C. 452, 322 S.E.2d 692 (Ct. App. 1984). The Supreme Court in Woodstock & Spool Manufacturing Co. v. Charleston Light & Water Co., 76 S.C. 95, 63 S. E. 548 (1909) also held that "it is a nuisance to use property in such a way that annoying or injurious odors are emitted." The court determined that the offensive odors from the adjoining property deprived the complainant of the enjoyment of his life and property, in that, among other things, the odors affected the complainant's hosting of family picnics and church groups and his gardening activities.

The undisputed evidence in this record establishes that an anticipated nuisance "is inevitable from the proposed use of the premises or will necessarily result" from the operation of the Wells facility. Such nuisance impact is neither "doubtful, contingent, or conjectural." Roach v. Combined Utility Comm. 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).

In addition, as a matter of law, the Department may not authorize a nuisance. Where by statute the Department is obligated to suppress nuisances, it may not, in turn, approve one by permit. S.C. Code Ann. § 44-1-140. This duty acquires particular importance in the case of agricultural activities because of the special status accorded such facilities by statute. Uniquely for agricultural facilities, including poultry farms, the General Assembly has afforded protection from common law nuisance claims by persons 'coming to the nuisance' for such facilities which are in operation for a year or more. S.C. Code Ann. § 46-45-30 (Supp. 1997). Thus, the permitting of this operation at the Wells site would likely preclude any possibility of any future action in equity and would preclude the future unencumbered use of nearby property, such as future residential development or the construction of a retirement home by Peggy Baxley. It is critical, therefore, that the determination of the effect of odors, dust, airborne contaminants, flies, and other factors which are proper for consideration in a nuisance action, be considered in this permitting action and proceeding prior to the start-up of the operation of the agricultural facility.

Finally, the duty of the Department to avoid permitting a source of nuisance odors is now reinforced by statute. As a part of the General Assembly's recent legislative actions regarding confined animal feeding operations which focused principally upon large swine facilities, a separate provision was adopted, effective July 1, 1996, which prohibits, without limitation, the emission of nuisance odors and requires the Department to require remediation of such emissions. S.C. Code Ann. § 47-20-70 (Supp. 1997). This statute merely codifies the existing common law of nuisance as it applies to an emission to the air causing an "undesirable level of odor." The factors discussed in § 47-20-70 include interference with the health or welfare of the people, property and enjoyment of life or use of affected property. Further, it empowers the Department to require the implementation of specified "abatement and control practices, " in order to accomplish the necessary "remediation of the undesirable level of odor." S. C. Code Ann. § 47-20-70(c). This enactment establishes beyond question the authority of the Department to regulate and abate sources of nuisance odor. Nothing in this recent enactment authorizes the permitting of a facility which will emit or cause such undesirable odors. Moreover, the duty imposed on the Department to require remediation of such odors implies that a facility, such as in this case, which will inevitably emit undesirable odors affecting neighboring residents must not be permitted to operate in the first place.

It is beyond doubt that the Department is no less responsible under the Pollution Control Act for regulating and controlling the discharges of waste from the Wells facility, including odors, gasses, dust, pathogens, other airborne contaminants, flies and rodents, than for regulating any other pollutants which are injurious to human health, welfare and the environment. The Department acknowledges its responsibility by addressing these impacts in its permitting guidelines as well as in the special conditions for transport nuisance abatement included in this very permit. The Department cannot now seriously claim that such matters are to be left to the local zoning or land use authorities or that injured neighbors should look to the courts for a remedy after the damage is done. The Department cannot claim that such impacts will not occur at the facility as permitted and then, faced with the overwhelming evidence that transport nuisance impacts are inevitable, "pass the buck" to local government or to the courts. "The State of South Carolina has a substantial interest in maintaining reasonable standards of purity of the air and water resources of the State." South Carolina 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). It had that responsibility, which it failed to discharge, in this case. Petitioners have demonstrated by a preponderance of the evidence that the proposed permit for the Wells poultry facility must be denied.

Due Process

Lastly, the action by the Department in permitting the Wells facility with its strong potential injurious effects on its neighbors, and the great probability of forcing the Haley Farms tomato packinghouse out of business, is constrained by fundamental principles of constitutional law protecting property rights and substantive due process. Where, as here, it is established that "the decision is not fairly debatable, but is so unreasonable as to impair or destroy constitutional rights, it is the court's duty to declare the . . . . action unconstitutional. In the final analysis the question of due process is a judicial not a legislative one." Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797, 799 (1975).

Having carefully considered the evidence and testimony, and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following Findings of Fact:

a. General Findings

1. On May 7, 1996, Wells made application to the Department for permits to construct and operate four broiler houses and to manage the 900 tons of poultry waste generated per year by 600,000 broiler chickens on his family's land on Brewer Road in the Bloomville community of Clarendon County, South Carolina. As reflected on the face of the permit, the chicken manure to be generated by this facility is the equivalent of the human waste generated by a city of 85,714 people. As part of the application process, Wells asserts that he sent the Department's notice forms to all property owners within 1,000 feet of the proposed barn site. This assertion is disputed by Petitioners. On July 23, 1996, the Department issued Permit to Construct No. 18,135-AG to Wells.

2. The birds will be raised within completely enclosed houses. Each of the four broiler houses is capable of holding 30,000 birds. Each house is approximately 40 feet by 500 feet and runs east to west. The houses are designed as "tunnel ventilated" houses with exhaust fans located on the eastern end. The fans are computerized to activate if the houses become too warm or too moist. The birds will be kept cool in the summer months by employing evaporative cooling pads on the exterior of the structures through which air is drawn and cooled as it enters the house, eliminating the additional moisture produced by traditional fogging systems. The panels and curtains along the sides of the houses will remain closed while there are no birds in the houses.

3. The birds planned for this facility are referred to as "big birds." They will be raised in almost complete darkness in order to keep them passive, less prone to scratching, and commercially more desirable.

4. The watering system for the birds is designed so there are eight drinker lines running parallel to the sides of the house. The birds can extract the water from the nipple drinkers found along the pipe at fifteen inch intervals. Any water spilling from the nipple apparatus is captured in a cup below. The water would enter the drinker lines from a main pipe entering through the ceiling. Pressure is maintained in the pipes by a holding tank on the end of each drinker line. The system's design allows for an emergency shut-off if pressure in the piping drops below a threshold amount.

5. Everette M. and Anne H. Haley own property directly across Brewer Road from the Wells' tract. They live on the property with their daughter Sonia. The Haleys' residence is located on this property some 1,500 feet north of the site of the proposed broiler houses. The Haleys have operated on their property adjacent to their home a tomato growing and packing business known as Haley Farms for 25 years. Haley Farms is the largest independent, integrated tomato growing, picking and packing business in South Carolina. Haley Farms operates a 45,000 square foot packing house on Brewer Road about 1,800 feet downwind from the Wells poultry barn site. The Haley operation cultivates almost 300 acres of tomatoes, employs about 300 people during the critical July harvest and has grossed as much as $5.6 million per year.

5. Ernest L. "Vonnie" Ridgeway co-owns with his sisters property directly south of the Wells site. His property line is only 200 feet from the barn site and his residence is only 1,500 feet from the barns. Peggy Ridgeway Baxley owns about 45 acres adjacent to and to the south and east of the Wells poultry site. Her property line is only 200 feet from the proposed chicken barns. She had planned to build a home and retire to this family land. Richard and Wanda Wessinger own property and reside immediately to the east across Deep Creek from the Wells' site. Their home is about 1,700 feet from the nearest barn. Gaye and Kermit Holliday own property adjacent to the Wells site as do Anne McAllister and Lester C. Thompson, Jr. Daisy B. Thompson, Levi L. Richburg and Leola White own property and live at various locations near the Wells barn site.

6. The poultry facility would be located in a rural, agricultural area of Clarendon County, South Carolina, near Bloomville. It has been partially constructed. Other poultry facilities are scattered all over the general area. Many of them are within a mile and a half of the Petitioners and the proposed facility.

7. There is a heavily forested area from the southeast to the northeast of the facility. The trees in that area are not under any current plan to be harvested. The rest of the facility is buffered by trees. Mr. Wells intends to plant a row of leland cypresses to the north of the property to isolate the chicken houses from the view of adjoining landowners.

8. The Wells' property slopes towards Deep Creek on its eastern and southern boundaries. North of the proposed site is higher ground.

b. Waste Management Plan

9. The Wells facility is a dry litter disposal system, presenting no significant risk of water pollution to well water. The proposed broiler houses are fully enclosed, which should prevent contact between the layer of manure in the house and rain water runoff. There is to be no liquid discharge directly from the houses.

10. Occasionally, litter must be cleaned out of the facilities. It is to be cleaned out of the houses at least once a year, and sometimes twice a year. Farmers clean the houses out when they can use the litter as fertilizer. For Wells, these periods are in the fall and in the spring. Summer is not a general clean-out time, because the crops are already in the field.

11. Wells seeks to dispose of the manure and dead animals by discharging them into the environment. The manure from the houses is dry litter consisting of sawdust, wood shavings, and chicken manure. Dead birds will be composted. Total waste production from the operation is estimated to be 922 tons per year.

12. The Service drafted a Waste Management Plan for Wells which was incorporated into the permit. As drafted by the Service, the Waste Management Plan is designed to utilize the waste which is produced by the poultry operation each year. The Plan identified potential fields for land application of the waste. The plan designed by the Service provides that the waste will be applied to the fields in such a way, and in such an amount, that the agricultural products or plants in that field utilize all of the litter that is spread thereon.. This process considers the amount of litter (manure and wood shavings) that would be produced by the broiler facility each year, determines the soil types in each field, and examines the nutritional requirements of the crops that will be grown in that field.

13. Based upon the engineering tables and the agronomic tables used by the Service, Wells has more than three times the amount of acreage necessary to dispose of the waste generated by this facility.

14. Some of the same fields that are in this plan are used in another waste management plan of Wells. Even considering this factor, there is sufficient land to safely accept the waste produced by both facilities.

15. The waste management plan states the maximum loading rate for each field, regardless of the source. As drafted, the plan prevents Wells from applying the maximum from each of his respective facilities to the same field. Practical farming practices prevent this eventuality as well. Wells owns and/or farms all the land in the waste management plan. As poultry litter is the functional equivalent of fertilizer, if Wells were to apply double the maximum loading rate to a particular field, it would over-fertilize the crop and destroy it. In addition, Wells performs soil samples and litter samples and applies the exact amount required to achieve the optimum crop yield.

16. There are no major water bodies in the immediate vicinity of the Wells facility. There is a small creek near the facility named Deep Creek, which flows into the Pocotaligo River more than three miles to the north.

17. The permit prohibits applying waste within 100 feet of watercourses and requires that waste must be immediately spread with incorporation on flood plains allowed only after the danger of major runoff events has passed.

18. Of the acreage to be used for disposal of manure, Wells either owns the land or has leases or permission to spread the manure on other land. The waste management plan identifies 387.6 acres which is available for the litter to be land applied. This acreage is capable of receiving 3949 tons of waste. The facility is estimated to produce only 922 tons of waste. Wells will have the use of sufficient acreage to meet more than the 922 ton per year manure demand.

c. Tomato Facility and Salmonella

19. The Haley tomato facility is separated from the proposed location of the broiler houses by a thin line of trees, a field, and state road 262 (SR-262). The field is planted with corn during the time the tomato facility is in operation.

20. Highway SR-262 is a two-lane paved road. From time to time, trucks laden with dry litter from existing chicken houses in the area travel SR-262 past Haley's tomato packing house.

21. Approximately 80% of the tomatoes produced and sold by Haley are packed in this facility. The remaining 20% are picked and boxed in the field.

22. Tomato packing and selling is a competitive business with a narrow window of operation. The critical period for packing and selling the tomatoes at Haley's facility begins around June 20th at the earliest and ends around July 8th at the latest.

23. Although there is little topographic relief in the area, the tomato facility sits at a slightly higher elevation than the Wells site.

24. The tomatoes processed in the facility are washed in a chlorine bath upon arrival. The fruit then proceeds on a series of conveyor belts through a complex system designed to sort and package the tomatoes according the size. After they are packaged, the tomatoes, most of which are harvested and packed at a mature green stage, are placed in a chamber that is flooded with ethylene gas. The ethylene gas accelerates the ripening process of the fruit, and the tomatoes are left in the gassing chamber according to the desired level of ripeness.

25. The tomato industry has adopted a process or program called HACCP. The HACCP program helps ensure the cleanliness of tomatoes processed according to its design. The Haley facility has adopted the HACCP program.

26. The HACCP program for tomatoes concentrates on three avenues of contamination, including (1) the quality of the water used to wash the fruit, (2) the cleanliness of the boxes in which the tomatoes are stored, especially as this relates to any resident rodent population that may contaminate the boxes, and (3) contact between human hands and the tomatoes after they exit the chlorine bath. Contact with human hands is identified as the most important and likely source of contamination of tomatoes. The tomatoes boxed in the field are not washed at any time.

27. Most of the tomatoes leaving the Haley facility travel to distributors. These distributors often transfer the product from the boxes in which they arrive to boxes of their own. This repacking process may or may not incorporate the HACCP process. Many of the distributors test their products upon arrival for biological contamination. Biological contamination is a concern to the produce industry.

28. Salmonella is a general term used to describe over 3,000 known strains of organisms which share the genus name Salmonella. The organism is known to be transmitted by direct contact and ingestion. No other means of transmission has been documented. The organisms are considered ubiquitous by microbiologists, and are found in the gastro-intestinal tract of warm-blooded mammals such as dogs, cats, humans, and farm animals, including poultry.

29. There is no scientific evidence to demonstrate whether the organisms can mutate from one strain to another.

30. There are at least two strains of salmonella associated with chickens that are harmful to humans. These strains are Salmonella enteritidis, which lives in the gastro-intestinal tract of chickens, and Salmonella typhimurium, which attaches to the ovaries of chickens. Either may pass into the excrement of the birds, and thus become available for transmission to another receptive host.

31. Salmonella has no means of transporting itself through the air. It may, however, be carried by a vector or attach to a particle of dust, which may then become airborne.

32. The experts at the hearing testified that any risk of contamination of the tomatoes in Haley's packing operation would be greatly reduced if the broiler houses were devoid of birds during the packing facility's operation, and if dry litter were not spread on any fields near the packing operation during the packing facility's operation.

d. Health, Odor and Nuisance Concerns

33. The Department's 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.

34. All poultry houses will produce odor to some extent and on certain days. Practically speaking, it is impossible to design a poultry house that does not emit some odor.

35. Petitioners presented expert testimony establishing that odors, dust, gasses, airborne pathogens, flies and rodents will inevitably and routinely be generated by the normal operations of the proposed poultry facility. Animal waste management and odor expert Dr. Ronald Miner described the chemical processes which produce odors associated with gasses and particulates generated by the decomposition of chicken excreta. The venting of these natural by-products of poultry waste from the poultry barns into the atmosphere is required for the proper operation of the facility. Dr. Miner stresses that since eliminating or containing odors and other contaminants generated by animal production facilities is neither technically nor economically feasible, proper site selection with adequate setbacks from neighboring properties is essential to protect the community from the impact of transport nuisances.

36. Applying generally accepted siting principles from such sources as the American Society of Agricultural Engineers as well as the Department's own siting criteria, Dr. Miner expressed the opinion that the proposed Wells site is not an appropriate location for a poultry facility. In his opinion, odors and other airborne contaminants will inevitably be transported from the Wells barns to the Petitioners' residences and properties including the Haley Farms packinghouse. Dr. Miner tested a sample of Mr. Haley's cardboard tomato carton and determined that it absorbs detectable chicken manure odors when exposed to the exhaust air from a poultry barn. Even without chickens present and closed up, the poultry barns will continue to release odors and airborne contaminants as well as flies and rodents. In his opinion the damp cartons would likely absorb manure odor while exposed in the packinghouse.

37. Dr. Miner also testified that over-application of poultry manure to the land in excess of the needs of the crops can lead to contamination of ground and surface waters. He reviewed a potential alternative site on other Wells property which would provide significantly greater setbacks from residences and the packinghouse.

38. South Carolina State Climatologist Emeritus John Purvis likewise expressed the opinion that any airborne contaminants, including odors and pathogens discharged from the Wells poultry barns, would be inevitably and routinely transported to the Petitioners' homes and property. More than a third of the time the winds will blow in a southerly direction from the poultry barns toward the Haley residence and tomato packinghouse. About 20% of the time winds will carry contaminants in the opposite direction toward the Leola White residence. The winds will also carry contaminants both east and west some of the time to the nearby properties and homes. Air pollution effects are particularly severe during the summer months in South Carolina due to the high incidence of air stagnation conditions where there is very poor dispersion of airborne contaminants. Similar conditions also occur many nights when ground inversions and calm air cause poor dispersion and drainage of pollutants toward lower areas.

39. Upon learning that Wells was commencing construction of the poultry facility and that the permits had been approved, Everette Haley sought expert advice concerning any potential hazard which might be posed by the chicken barns to his fresh tomato business. The advice from technical experts and his customers was uniformly negative: fear of Salmonella and other pathogens associated with chickens contaminating his tomatoes would absolutely ruin his tomato farm. His long-time advisor, Clemson extension specialist Dr. Jim Rushing, published a journal article on the need for a rigorous food safety program to protect fresh tomatoes from Salmonella contamination. Previously he had assisted Haley in implementing a HACCP program for Haley Farms. Dr. Rushing advised Haley of two outbreaks of Salmonella poisoning, one of which was traced from a Taco Bell through Chicago to a coastal South Carolina tomato packer. He also identified a documented case of the airborne transmission of Salmonella from chickens to a baby formula factory. He advised Haley to consult a microbiologist with more specialized expertise.

40. At the same time Haley sought advice from the Department and was referred to State Toxicologist Dr. John Brown, who expressed concern and undertook to research the question. After consulting with a number of his key customers, Haley concluded that he would be out of the tomato business if the chicken facility became operational. The risk of financial losses from an inability to recoup the necessary $1.6 million investment required to grow and market a tomato crop which he could not sell, together with the risk of making someone sick, were both simply too great. Therefore, Haley cancelled his 1997 tomato crop, but changed his mind after Wells' supplier, Goldkist, agreed to defer operation of the Wells poultry facility until after the Haley tomato season was completed. However, the delay in planting resulted in losses to Haley of $600,000 due to missing his critical market window. Large amounts of tomatoes were left in the fields for the taking by 'gleaners' in the absence of labor to pick them.

41. Haley has worked hard for many years to establish a valuable and excellent reputation for the quality of his produce. The value of the goodwill and investment in the Haley Farms business would be significantly reduced by the permitting of the Wells poultry facility at the proposed site. In the past Haley has used his packinghouse for other fresh produce which he has grown in the spring and fall. He has been approached recently with a proposal to use his packinghouse for repacking produce after the tomato season. Changes in the tomato market such as those associated with the free trade agreement may require Haley Farms to diversify beyond its current operations in the future. Thus, since Haley Farms' packinghouse has been and may be used at times other than the tomato season, to limit the operations of the Wells poultry facility only during one month in the summer would not be sufficient to alleviate all concerns.

42. Haley's conclusion that the operation of the Wells poultry facility would put him out of business is supported by the testimony of the several expert witnesses who testified on his behalf during the trial. University of Georgia Microbiologist and food safety expert Dr. John Carpenter testified that Salmonella and a number of other human pathogens associated with poultry facilities are capable of transport from the proposed Wells barn site to the Haley packinghouse by air as well as on carriers such as rodents, birds and flies. Such bacteria are then capable of propagating on and in the fresh moist tomatoes which are exposed to the air during most of their several-day processing in the open packinghouse.

43. Salmonella is a widespread and debilitating gastrointestinal disease which disables victims for days or weeks and causes death in those with weakened immune systems. Salmonellosis outbreaks have resulted in notable food safety scares and damage to the food industry. Rigid food safety programs are common in the fresh produce industry since uncooked fruits and vegetables are particularly vulnerable. Dr. Carpenter conferred with a number of other experts and concluded that it would be imprudent and a bad practice to locate a fresh tomato packinghouse and poultry facility so close together. In all of his 40 years' experience he has never seen such facilities located as closely together as in this instance.

44. Produce buyers Mark Whisnant, Louis Ledlow and Buddy McEntire testified that they would not buy Haley tomatoes if the Wells poultry facility were allowed to operate at the proposed site. Louis Ledlow is one of the top five tomato buyers in the United States. He has been in the produce business for 35 years and buys approximately $50 million of tomatoes each year from growers all over the country. He has purchased tomatoes from Haley Farms for 6 or 7 years; during this period he has visited the Haley Farms packinghouse 3 to 5 times per week during the buying season. Further, he has visited the facility of every major tomato grower in the United States and has never seen a poultry facility as close to a packinghouse as is proposed here. He testified that if he smelled the odor of chicken manure at the Haley Farms facility, he would not buy any tomatoes for his customers. He stated that his customers wouldn't "touch the tomatoes with a ten foot pole" because of the risk, particularly where there are plenty of alternative sources for their purchase. Likewise, he stated that if manure odors were detected on Haley Farms tomato boxes when they were delivered to a buyer, they would most likely be rejected, he would be informed and he would immediately cancel his order with Haley Farms.

45. Buddy McEntire of Columbia, South Carolina testified that he would pull out and go elsewhere if he smelled the odor of chicken manure at the Haley Farms packinghouse. Mr. McEntire has been in the wholesale tomato repacking business for over 40 years; he sells to a 500 mile radius market. He has never seen a poultry facility of this size close to a tomato packinghouse. He practices a strict HACCP program to prevent Salmonella contamination and is very concerned that the Haley Farms tomatoes will be vulnerable to airborne contamination after they leave the initial chlorine bath and remain exposed to the air if the Wells facility becomes operational. He is familiar with new food safety standards barring the use of cow and chicken manure to fertilize fresh vegetables as well as literature demonstrating the risk of airborne transport of pathogens.

46. Mark Whisnant has been a produce buyer since 1981 and has worked for Haley Farms marketing and packing tomatoes each year since 1985. He testified that Haley Farms tomatoes are sold through buyers who visit the packinghouse or place phone orders for ultimate distribution to fast food restaurants like Wendy's or McDonald's and chain groceries like Food Lion and Kroger. It is his opinion that if the Wells poultry facility becomes operational, the Haley Farms tomato business will go out of business because no buyer will buy tomatoes from a facility so close to a chicken house. He stated that neither he nor the buyers would put their customers at risk of Salmonella contamination.

47. The review of the Wells application by the Department suffered from a number of notable deficiencies. Perhaps due to the mistaken belief that Mr. Wells had notified all affected parties, the writer of the permit, Henry Gibson, believed none of the neighbors had any objection to the proposed facility. As discussed in my earlier August 19, 1997 Order Denying Respondents' Motion to Dismiss, it is disputed whether Wells provided the notice form to those neighbors with property within 1,000 feet of the barn site. However, there is no dispute that no notice of the Wells permit application was provided to the Haleys, despite the dire impact of the proposed facility on their lives, health, welfare and business.

In any event, before issuing the permit the Department never consulted with any of the neighbors, including Petitioners. Mr. Gibson never conducted a site visit. He was not aware of the distance between the barn site and the residences or property lines of these neighbors. He did not know that the Haley Farms tomato packinghouse was across the secondary highway.

48. The Department never assessed the proposed site against its own site selection criteria with respect to any of the factors limiting the impact of transport nuisances such as odors, dust, flies and airborne contaminants. Mr. Gibson acknowledges that odors and transport nuisances will inevitably be generated and released from a poultry facility, but made no evaluation of whether any transport nuisances would be carried from the Wells barn site to Petitioners' properties.

49. If such impacts from a permitted facility cause injury to a member of the public, the Department lacks any authority to require compensation for damages. Any affected party would have to file an action in circuit court.

50. Notwithstanding the existence of its site selection criteria, the Department has never determined that denial of an animal production permit was required because of expected nuisance impacts on neighbors.

51. The neighbors to the existing Wells poultry barns in the Sugar Hill community, which were previously permitted by the Department, have routinely experienced very bad ammonia-like odors at their homes. The odors come from the Wells poultry barns. Testimony was given at the hearing that these odors have limited neighboring residents' outdoor activities and are associated with headaches, nausea and asthma attacks in their children. The odors seem to occur several days each week, both during the day and night.

52. Andrew Dortch and Maggie Conyers testified that they have observed uncovered chicken manure stockpiled on the ground next to the Wells' existing poultry barns for as much as six months. Numerous odor complaints have been made by the neighbors to the Department. As a result, the Department met with the community during 1996. While the Department promised to look into the odor complaints, the community has heard nothing further from the agency and the odor problems persist.

53. Wells' witness Dr. Charles Bryan is an expert in infectious diseases including the transmission of Salmonella in a hospital setting. He testified that the primary pathway for Salmonella transmission is through direct contact and acknowledged that airborne transmission is possible as well as transmission by flies and rodents. He is aware that Salmonella outbreaks have been traced to the contamination of fresh tomatoes. Dr. Bryan acknowledges that pathogens such as Salmonella which are present in an aerosol cloud of manure dust could contaminate food and lead to Salmonellosis in humans who consume that food.

54. Dr. John Brown, toxicologist with the Department, testified that 90% of the estimated 1 to 3 million annual cases of Salmonellosis go undiagnosed. Despite his training and experience, he had no ready answer to the query posed by Haley about the risk to the tomatoes at his farm from the poultry houses. Based on his experience with poultry in Arkansas, Dr. Brown shared Haley's concerns about odors affecting his packinghouse and told Haley that airborne poultry dander was a means of transmission of many poultry diseases. While he did not conclude that there was documented evidence that airborne Salmonella posed a major health hazard, he agreed that protective measures such as the HACCP program served important public health objectives. He agreed that in cases of high public health consequences such as a Salmonella outbreak in tomatoes, protective measures are warranted even without absolute proof of causation.

55. John King of Goldkist testified that his employees visit facilities such as the existing and proposed Wells houses to enforce good management practices; however, he acknowledged that his company has no role in the enforcement of conditions and limitations placed in permits issued by the Department. He was aware of odor complaints regarding the Wells Sugar Hill barns; however, he deemed them unsubstantiated and has taken no action to investigate them.

56. Mr. King thought the Haley Farms tomato packinghouse was an old peach shed until he received communication from Haley otherwise. Mr. King knows of no poultry facility in North Carolina or South Carolina which is located as close to a fresh produce packinghouse as is the proposed Wells facility.

57. Mr. Wells acknowledged at the hearing that one or two people have complained about odors emanating from his existing barns. He testified that the Department has met with the community, but acknowledged that the Department has taken no action to require him to abate or prevent odors or transport nuisances leaving that facility.

58. In granting the permit, the Department imposed twenty-one special conditions designed to govern the operation and maintenance of the facility, removal of waste from the facility, and transportation and land application of the waste.

59. Any wastes spread on pasture or hay land must be greater than 200 feet from a dwelling, or if spread within 200 feet, will be pursuant to a letter of approval from the tenant or owner of the dwelling. No rationale was given for the limitation of 200 feet by the Department.

60. The proposed facility is surrounded by limited tree and vegetative buffers that will aid in dispersion and reduction of any dust and odors transported away from the broiler houses. Dust and odor production will be at its greatest volume when the litter is removed and land-applied. 61. The permit restrictions do not provide adequate measures to control flies and pests. Although one of the conditions requires Wells to immediately disc into the soil any wet manure from the chicken houses, this condition does not address the issue of the flies inside the chicken houses and the wet manure which remains on the floor thereon for periods of time. Spilled water or other accidents will often produce large areas of wet litter inside the houses. Further, the condition requiring Wells to place waste (which is to be stockpiled on site for more than three days) on a concrete pad and cover it with black plastic to prevent fly breeding has not been adhered to by Wells at the existing facility, nor has it been enforced by the Department.

62. With regard to time frames within which the Department will address complaints by neighbors and require the facility owner to remediate, the testimony at the hearing was that those complaints registered by neighbors close to the existing facility with the Department have been ignored by the Department since 1996. There is no competent evidence in the evidence that the Department responds promptly to complaints about fly and odor problems from the existing facility owned by Wells nor that the Department has imposed any requirement that Wells correct any potential or existing problem. The Department has the authority to issue sanctions or revoke permits.

63. This court is not confident that the conditions in the subject permit will provide adequate measures to control the nuisances and problems arising from dust, flies, airborne contaminants and noise sufficient to prevent an endangerment to the health and welfare of the neighbors of Wells. Further, this court is concerned that if common law nuisances occur as a result of the operation of the proposed facility that the Petitioners will not have an adequate equitable remedy.

64. The permit restrictions do not provide adequate measures to control nuisances from dust, odor, airborne contaminants and noise. Even if additional restrictions were incorporated into the permit, the facility still would present a health problem for the populace in its general area because of its close proximity to neighboring residences and the tomato packinghouse.

65. I find that the site selected by Wells for the proposed poultry facility is not proper because of its proximity to neighboring residences and the tomato packinghouse.

Conclusions of Law

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

a. General Conclusions

1. The Administrative Law Judge Division has jurisdiction over the issuance of environmental permits. Further, the Administrative Law Judge who tries the contested case issues a Final Decision and Order pursuant to the provisions of S.C. Code Ann. §§ 1-23-350 and 1-23-600(B)(Supp. 1997).

2. 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). 3. The issuance of permits to construct and operate a poultry facility involving the collection of chicken wastes and their disposal into the environment is governed by the South Carolina Pollution Control Act, S.C. Code Sections 48-1-10, et seq., which requires a permit issued by the South Carolina Department of Health and Environmental Control prior to construction of the facility and any discharge of waste from that facility to the environment. S.C. Code Ann. § 48-1-90. The discharge of animal wastes from confined animal feeding operations such as the proposed Wells poultry facility poses the risk of significant environmental harm through contamination of the air and water of the State.

4. The Department has general responsibilities over matters that present threats, whether real or potential, to the health of the people of the State with such threats including the handling and disposal of animal wastes. S.C. Code Ann. § 48-1-100(C) (Supp. 1997).

5. The Department is authorized to require a party to obtain approval of plans for disposal systems for such wastes. S.C. Code Ann. § 48-1-50(10) (1987).

6. The Department 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).

7. It is unlawful to construct or install a waste disposal system until the plans for such have been submitted to and approved by the Department through the issuance of a permit. S.C. Code Ann. § 48-1-110(a)(1) (Supp.1997).

8. Except in compliance with a permit issued by the Department, it is unlawful for a person to discharge wastes into the environment. S.C. Code Ann. § 48-1-90(a) (1987).

9. S.C. Code Ann. § 48-1-30 requires the Department to promulgate regulations to implement the Pollution Control Act requirements for the issuance of permits for animal production facilities and the discharge of animal waste into the environment. The Department had not done so at the time the issues arose in this case.

10. 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).

11. A regulatory body possesses not only expressly conferred powers but also those powers necessarily inferred or implied to enable it to effectively carry out its duties. Carolina Water Service, Inc. v. South Carolina Pub. Serv. Comm'n., 272 S.C. 81, 248 S.E.2d 924 (1978); City of Rock Hill v. South Carolina Department of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327 (1990). However, powers may not be implied which enlarge statutory authority, or which

liberalize the policy underlying the statute on which they are based. Beard-Laney, Inc. v. Darby, 213 S.C. 380, 49 S.E.2d 584 (1948).

12. "Sewage, industrial wastes or other wastes" are broadly defined and encompass dead animals and manure resulting from a chicken broiler facility. S.C. Code Ann. § 48-1-10(4), (5), and (6) (1987).

13. 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, the court concludes in this case that the proposed facility poses an impact upon the health and welfare of the neighbors of Wells. Therefore, the Department has the duty to consider land use factors.

14. The powers of the Department are to be construed liberally when they concern the protection of the health and welfare of the public. City of Columbia v. Bd. of Health and Envtl. Control, 292 S.C. 199, 355 S.E.2d 536 (1987).

15. Important private rights of the Petitioners and other neighbors of the proposed Wells facility are at stake in the issuance of this permit by the Department, including their right to a healthy environment and their right to unencumbered use and enjoyment of their property. The Department has issued two guidance documents for the permitting of confined animal facilities: the April 1985, "Environmental Guidelines and Procedures for Dairy, Poultry, Swine, Cattle, Other Animal Operations and Peach Packers in South Carolina," and the December 1, 1994, "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control." Neither guidance document was duly promulgated as a regulation pursuant to the South Carolina Administrative Procedures Act (APA), S.C. Code Ann. § 1-23-120 (Supp. 1995), and their provisions are, therefore, arguably unenforceable by the Department. 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 contravenes 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).

16. Because no specific regulations have been promulgated to regulate agricultural facilities and waste disposal systems for these facilities, there are no regulations which govern the boundaries and requirements of the permit at issue.

17. A regulation is an "agency statement of general public applicability that implements or prescribes law or policy or practice requirements of an agency." S.C. Code Ann. §1-23-10(4) (1986). A substantive rule is one which has a significant impact upon the existing rights and obligations of regulated parties, and has the force and effect of law such that the agency is no longer free to exercise its discretion in the application of the rule. American Bus Ass'n v. United States, 627 F.2d 525 (D.C. Cir. 1980). It is well-settled law in South Carolina that regulations must be promulgated pursuant to the mandates of the APA.

18. In determining whether a rule should be promulgated as a regulation, courts look to the actions of the agency, not the label the agency gives. Columbia Broadcast System, Inc. v. United States, 316 U.S. 407 (1942); see also Owen Industrial Products, Inc. v. South Carolina Department of Health and Environmental Control, C.A. # 91-CP-40-1444 (1992). Whether a particular agency proceeding announces a rule or a general policy statement depends upon whether the agency action establishes a "binding norm." Home Health Service, Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994). If the rule acts as a "binding norm" and give the agency no discretion in its application, the rule is an invalidly enacted regulation. American Bus, 627 F.2d at 529.

19. DHEC has improperly applied the 1994 Permitting Requirements to agricultural permit applicants instead of promulgating specific regulations as was directed by the General Assembly.

20. The 1994 Permitting Requirements, on their face, are binding on all similar applicants.

21. DHEC's formulation and application of the 1994 Permitting Requirements, without promulgating them as regulations, is without substantial justification, and is in direct conflict with an express legislative mandate to promulgate regulations pursuant to §48-1-30 of the Pollution Control Act.

22. The 1994 Permitting Requirements issued to provide guidance for the issuance of agricultural facility permits are not promulgated regulations, and therefore, do not have the force and effect of law. See Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).

23. Because no specific regulation governs the boundaries and requirements of a permit applicable to this particular situation, and because the 1994 Permitting Requirements do not have the

force and effect of law, this tribunal must consider all relevant evidence and materials in deciding whether to grant an agricultural facility permit.

24. The DHEC staff has utilized the 1994 written guidelines in determining whether and under what restrictions to issue the permit to Wells. DHEC guidelines address site selection, waste management, manure storage and handling, dead animal disposal, nuisances caused by odors and vectors such as flies, and maintenance and operation of the facility. Based upon these guidelines, DHEC granted the permit with restrictions.

25. Taking these guidance documents to be "policy statements" for agency guidance rather than rules establishing externally binding norms, see Home Health Service, Inc. v. South Carolina Tax Commission, 312 S.C. 324, 440 S.E.2d 375, 378 (1994), they nonetheless represent the Department's interpretation 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. 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. 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).

26. 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. I conclude that the "Site Selection Criteria" contained in the guidelines for all new facilities managing animal wastes specify mandatory standards, along with other factors, which must be established in order to warrant a permit for a particular site and to protect the public and the environment from harm. The Department and Wells must establish by a preponderance of the evidence that the site selected for the facility herein comports with these siting requirements in order for them to sustain their burden of proof in this proceeding..

27. With respect to the 1,000-foot setback standard, the plain and unambiguous language of the Siting Criteria requires that the production unit--here, the poultry barns--be located at least 1,000 feet from the lot line or property line of the facility site. I conclude that the Wells site violates this requirement since the barns will be only 200 feet from the property lines of neighbors and that the proposed Wells facility may not be permitted at its present site. Further, the 1,000 foot set back is unclear as to whether the set back operates from the lot line or footprint of the poultry barns at the proposed facility.

28. I conclude that a clear preponderance of the evidence in this record requires permit denial and that DHEC's decision to issue the Wells permit is arbitrary, capricious and an abuse of discretion in light of the overwhelming probative evidence of the proposed site's failure to comport with DHEC'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 Wells 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, acrid, ammonia-like odors, dust, gasses and airborne contaminants will routinely be generated during the normal, proper, operation of this facility. I conclude that the generation of such odors will occur with certainty as a normal biological process of the decay of poultry waste. The offensive and undesirable character of such odors is beyond serious question as reflected by the testimony of witnesses living

near the existing Wells poultry barns and the expert testimony. Even optimal management practices will not eliminate these normal odors associated with the poultry waste.

28. Despite the criteria set forth in the guidance documents, the Department made no evaluation of the likely transport of odors from the proposed site to neighboring residences and properties, nor even an evaluation of the impact of prevailing winds on "transport nuisances." No evidence whatsoever was offered by the Department or Wells 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 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.

29. Independent of the siting criteria reflected in the guidance documents, 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. 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.

30. The Department is no less responsible under the Pollution Control Act for regulating and controlling the discharge of waste from the Wells 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." South Carolina 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). In this case, the Department failed to fulfill its responsibilities by issuing a permit without complying with its own siting criteria and without fully considering and investigating the potential impact on the health and welfare of the Wells' neighbors. Accordingly, the permit must be denied.

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

ORDERED that State Construction Permits # 18,135 AG and # 18,224 AG were improperly issued and are denied.

AND IT IS SO ORDERED.

______________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

May 4, 1998

1. The Department has now submitted a set of regulations governing the permitting of agricultural animal facilities to the General Assembly. See Proposed New Regulation 61-33, published in the September 21, 1997 issue of the State Register. However, these regulations are inapplicable to the subject permits.