ORDERS:
ORDER
I. Statement of the Case
The South Carolina Department of Health and Environmental Control (DHEC) granted Construction
Permit #18,260-AG to Frank McLeod (McLeod) in furtherance of McLeod's plans to construct a
turkey brooder house facility and waste disposal system in Kershaw County. Petitioners, Mollie A.
Brooks, Richard Haile Nelson, Richard Nelson, Ivan Nelson, Don Nelson, II, Anthony Nelson,
and Betty L. Bailey-Alford (petitioners) protested the granting of the permit and sought a contested
case hearing. This matter was heard on September 17, 1997, with jurisdiction granted pursuant to
S.C. Code Regs. 61-72 § 201 and S.C. Code Ann. § 1-23-600(B). After considering all of the
testimony and the law, the permit is granted.
II. Issue
Is DHEC's issuance of a permit with restrictions to Respondent Frank G. McLeod, Jr., a proper
decision where such permit authorizes the construction of a waste disposal system for a turkey
brooder house facility?
III. Analysis
1. Positions of Parties:
DHEC and McLeod assert the permit is properly granted. In their view, the restrictions on the permit
prevent the dangers the petitioners assert. Further, the turkey barns will not create a hazard to health
nor to well water. Finally, in McLeod's view, he asserts he either owns sufficient land or has
alternative means to properly dispose of the waste.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. DHEC issued construction permit # 18,260-AG to McLeod on April l7, 1997.
2. McLeod seeks to construct and operate a turkey brooder house facility consisting of 2
brooding houses to house approximately 12,500 turkeys.
3. Each brooding house will accommodate 6 l/2 flocks per year and will allow a total of 162,500
turkeys per year.
4. The facility will be located in a rural area of Kershaw County.
5. The general area of the proposed turkey brooder operation is an agricultural area.
6. Local zoning and land use requirements do not prohibit the turkey brooder facility.
7. The turkeys will be raised completely within enclosed houses.
8. The turkeys will arrive at the turkey barns as days-old poults and will be removed from the
houses after achieving a weight of approximately 5 lbs.
9. The turkeys are raised on sawdust and wood shavings producing a dry litter.
10. McLeod seeks to dispose of the manure and any dead animals by discharging them into the
environment.
11. The litter from the houses will be removed and will be land-applied over agricultural cropland
and fields as fertilizer.
12. Total waste and litter production from the operation is estimated to be 390 tons per year.
13. McLeod submitted a Waste Management Plan prepared by the Natural Resources
Conservation Service, U.S. Dept. of Agriculture, for the land application of litter which litter
will consist of wood shavings and manure from the turkey houses.
14. The Waste Management Plan identified potential fields for land application of the waste.
15. The Waste Management Plan analyzed the total acreage available for disposing of the litter.
16. Of the acreage to be used for disposal of litter, McLeod owns some of the land and has leases
or expects to obtain permission to spread the litter on other land.
17. McLeod's plan utilizes alternative disposal methods consisting of storing the waste on site,
transporting the waste along with the turkeys at the end of each growing cycle, or utilizing
the services of a private composting company.
18. DHEC inspected the proposed site upon which McLeod intends to place the proposed turkey
facility.
19. In granting the permit DHEC relied upon departmental guidelines and examined the Waste
Management Plan prepared by the Natural Resources Conservation Service.
20. 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.
21. In granting the permit DHEC imposed twenty-one (21) special conditions designed to govern
operation and maintenance of the facility, removal of waste from the facility, and
transportation and land application of the waste.
22. An unpaved road runs immediately behind the proposed location of the turkey houses.
23. The status of the unpaved road as being either public or private is currently disputed and is
the subject of litigation pending in the circuit court.
24. Within a single residence, several members of the Nelson family live within 1200 feet of the
proposed turkey houses.
25. The McLeod family lives within 1,500 feet of the turkey houses.
26. The Nelson and McLeod families both have children with some of the children in each family
having asthma.
27. Notification letters of the proposed construction were sent to all landowners within 1,000 feet
of the facility proposed by McLeod.
28. DHEC received objections from adjoining land owners including members of the Nelson
family.
29. The waste management plan accommodates sufficient acreage to compensate for 390 tons of
litter.
30. Before the waste disposal system is placed into operation, McLeod will have the use of
sufficient land or other means of disposal to meet the 390 ton litter demand.
31. Any wastes spread on pasture or hay land will 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.
32. The McLeod operation is a dry litter disposal system presenting no significant risk of water
pollution to well water.
33. The permit restrictions provide adequate measures to control flies and pests.
34. The permit restrictions provide adequate measures to control nuisances from dust, odor, and
noise.
35. The permit restrictions provide adequate measures to control the times and manner of
spreading the manure.
36. The permit restrictions provide adequate measures to control the maintenance and operation
of the facility.
37. The permit restrictions provide adequate measures to control the records required to be kept
by the operation.
39. The petitioner's objections, when viewed in light of the extensive restrictions placed upon
McLeod, do not warrant prohibiting DHEC from granting the permit.
3. Discussion
a. DHEC Authority For Issuing Permits For Turkey Barns and Waste Disposal
DHEC has general responsibilities over matters that present threats, whether real or potential, to the
health of the people of the State, including the handling and disposal of animal wastes. S.C. Code
Ann. § 48-1-100(C) (Supp. 1996). As a part of its specific responsibilities, DHEC is authorized to
require a party to obtain approval of plans for disposal systems for such wastes. S.C. Code Ann. §
48-1-50(10) (1987). Further, DHEC may grant its approval by the issuance of a permit "under such
conditions as it may prescribe. . .for the installation or operation of disposal systems. . ." S.C. Code
Ann. § 48-1-50(5) (1987). As a means of underscoring the importance of obtaining prior approval
through the permitting process, certain acts are unlawful without a permit. It is unlawful to construct
or install a waste disposal system until the plans for such have been submitted to and approved by
DHEC through the issuance of a permit. S.C. Code Ann. § 48-1-110(a)(1) (Supp. 1996). Further,
it is unlawful for a person to discharge wastes into the environment, except in compliance with a
permit issued by DHEC. S.C. Code Ann. § 48-1-90(a) (1987).
Established administrative law also supports the permitting authority of DHEC over a turkey brooder
facility and waste disposal system. A regulatory body possesses not only expressly conferred powers
but also those powers necessarily inferred or implied to enable it to effectively carry out its duties. Carolina Water Service, Inc. v. S.C. Public Service Comm'n, 272 S.C. 81, 248 S.E.2d 924 (1978).
The powers of an agency such as DHEC are construed liberally when the powers concern the
protection of the health and welfare of the public. City of Columbia v. Board of Health and
Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).
b. Application of DHEC Authority Over Brooder Houses And Waste Disposal
A waste disposal system includes any system for disposing of "sewage, industrial wastes or other
wastes." S.C. Code Ann. § 48-1-10(12) (1987). Such terms are broadly defined and are sufficiently
inclusive to include dead animals and manure resulting from a brooder facility. S.C. Code Ann. § 48-1-10(4), (5), and (6) (1987). In the instant case McLeod seeks to construct two turkey brooder
houses that will house a total of 162,500 turkeys per year and will produce animal wastes in the form
of manure and dead animals. Further, McLeod seeks to dispose of the manure and dead animals in
a manner that will discharge such into the environment. Accordingly, McLeod must obtain a permit
from DHEC before he is allowed to construct the facility and DHEC may place limitations upon the
permit issued.
A. DHEC Restrictions
The application was reviewed by the DHEC Division of Water Pollution Control under the S.C.
Pollution Control Act, S.C. Code Ann. § 48-1-10 et seq. (Rev. 1987 & Supp. 1996), as implemented
through guidelines entitled the "Environmental Guidelines and Procedures for Dairy, Poultry, Swine,
Cattle, Other Animal Operations and Peach Packers in South Carolina" (April 1985) and the
"Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control" (December
1, 1994). Here, the DHEC staff utilized written guidelines in determining whether and under what
restrictions to issue the permit to McLeod. While not having the weight of formal regulations, the
guidelines are published and made available to the public in documents dated December 1, 1994 and
April 1985. Among other things, the guidelines address site selection, waste management, manure
storage and handling, dead animal disposal, nuisances caused by odors and vectors such as flies, and
maintenance and operation of the facility.
Based upon the guidelines, DHEC granted the permit but imposed extensive as well as comprehensive
restrictions:
1. Condition 1: McLeod must notify the Wateree District office when construction is complete
and the plan is ready to be implemented in order to allow the district office to conduct the
final inspection and issue the permit to operate. The permit to operate must be in place before
McLeod can remove any manure from his turkey barns.
2. Condition 2: McLeod must obtain prior approval from the Wateree District if any manure or
litter is to be land-applied on weekends so as to avoid spreading waste on weekends in that
most odor complaints associated with these types of facilities occur during the spreading of
manure.
3. Condition 3: McLeod must dispose of all medical wastes according to regulations since
DHEC statutes and regulations prohibit medical waste from being disposed on the ground.
4. Condition 4: McLeod must eliminate erosion problems by additional grading and filling. All
disturbed areas around the barns must have vegetation or a ground cover to keep soil from
washing away. Such a condition is designed to prevent erosion and thus prevent any pollutant
discharge into the ground from the barn.
5. Condition 5: McLeod must operate and maintain the waste system in accordance with the
Waste Management Plan. In short, a violation of the Plan is a violation of the permit.
6. Condition 6: McLeod must obtain written approval from neighbors if wastes will be spread
on pasture or hay land less than 200 feet from the neighbor's dwelling. This condition avoids
creating an odor nuisance during spreading on pasture or hay land. In addition, manure
cannot be disked into the soil by plowing manure under on pasture or hay land, as is done
with croplands.
7. Condition 7: If McLeod spreads manure on cropland he must have the manure disked in
within 24 hours of application to avoid creating odors and to avoid potential fly nuisances.
8. Condition 8: McLeod must apply the waste only when weather and soil conditions are
favorable and prevailing winds are blowing away from nearby opposite dwellings. This
condition seeks to limit fly problems by avoiding fields when soil and weather conditions
would create problems, such as applying waste onto wet soil. Waste with fly larvae and
pupae must be disked into the ground immediately or treated with a fly control method.
9. Condition 9: McLeod must allow a minimum 4-week recovery period between applications
of waste on the land so as to avoid over-fertilizing and to avoid potential groundwater
concerns.
10. Condition 10: McLeod may not apply waste within 100 feet of watercourses, must
immediately spread and incorporate manure on flood plains after the danger of major runoff
events is past, must use lower rates of application on shallow soils to avoid groundwater
contamination, and, on slopes over 300 feet long, must install terraces or surface drains to
slow the movement of waste over the land. These measures avoid the potential for
groundwater or surface water contamination.
11. Condition 11: McLeod must promptly repair leaking waterers inside the barns and practice
good sanitation to reduce fly problems and prevent runoff from inside the houses. This
condition keeps the manure dry, reduces fly problems, prevents run-off, and prevents the
occurrence of "hot spots" from wet manure sitting in litter. Further, wet manure must be
removed and immediately disposed of by land application and disking into the soil. Also, any
spillage during transportation must be immediately cleaned up.
12. Condition 12: McLeod must keep specific information at his facility for DHEC's review and
inspections by the Wateree District personnel. The Waste Management Plan requires a soil
test on all areas where manure has been applied every 2 years, and DHEC requires this test
on an annual basis. McLeod must track the amount of solids removed from the facility to
determine whether the facility is producing a significantly greater amount of manure than the
Waste Management Plan included. If yes, then the Plan is amended to reflect what is actually
going on at the site. McLeod is required to identify the fields used for manure application and
to assure that he is not putting all the waste in one spot. McLeod must record the dates of
land application of the waste, keep records of the mortality rate of his turkeys, and record
where the dead turkeys are disposed.
13. Condition 13: McLeod must use all sanitary precautions in collecting, storing, transporting,
and spreading wastes to ensure the wastes are not spilled, the wastes are properly covered
during storage and transport, and he is operating in accordance with the Waste Management
Plan and the permit.
14. Condition 14: To reduce fly and odor problems, if waste is stockpiled more than three days
prior to spreading the waste on land, the litter must be stored on a concrete pad or other
acceptable means covered with black plastic to prevent fly breeding. The cover keeps water
away from the manure and discourages fly breeding and odors. The plastic must be cut at the
top to vent it to allow ammonia gases to escape with the vent hole covered with screen wire
to keep flies and insects out.
15. Condition 15: McLeod is again directed to cover the waste during transport.
16. Condition 16: McLeod must dispose of dead turkeys by pit burial unless otherwise directed
by DHEC, and must call the DHEC 24 hour emergency number for directions in event of a
massive die-off.
17. Condition 17: McLeod must abate any transport nuisance at the facility such as complaints
from dust, odor, flies, noise, surface or groundwater degradation, within a time frame set by
DHEC.
18. Condition 18: McLeod must operate and maintain the facility in a manner that avoids
discharges into the environment in any fashion contrary to the Waste Management Plan, and
if McLeod abandons the facility, DHEC must be notified immediately.
19. Condition 19: If McLeod seeks to transfer the permit to another party, he must notify DHEC
in advance, and submit a written agreement containing the specific date for the transfer.
20. Condition 20: At all times McLeod must maintain an all-weather access road to the facility
to enable DHEC to reach the site for operation and maintenance inspections.
21. Condition 21: Consistent with condition # 1, McLeod must secure a permit to operate prior
to placing the facility into operation.
With these restrictions and conditions, McLeod's facility does not warrant a denial of the permit
requested.
B. Petitioner's Objections
The petitioner's objections (unhealthy environment by contributing to production of flies and odor,
turkey barns located too close to a public road, turkey barns will contaminate wells in the area used
for drinking purposes, and McLeod does not own lands he stated he intended to use for the disposal
of waste) when viewed in light of the extensive restrictions placed upon McLeod, do not warrant
prohibiting DHEC from granting the permit.
1. Unhealthy Environment
The petitioners assert the turkey houses will create excessive odor and produce flies to the detriment
of the area and especially to asthmatic children living nearby. While certainly DHEC is principally
charged with assuring the health of the public, DHEC is not charged with the responsibility of
establishing the land use mix within an area. Land use decisions are primarily the responsibility of
zoning authorities who exercise wide discretion in decision making. See Bear Enterprises v. County
of Greenville, 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).
2. Location of Barns Near A Public Road
Second, the petitioners assert the turkey barns will be located too near a public road. Such a concern
is not a sufficient ground to deny the permit. First, the testimony is that the status of the road as
public or private is currently in litigation in the circuit court. Thus, no determination has been made
that the road is public, and, therefore, the public status cannot be used as a basis for denial. Second,
and more compelling, the testimony established that DHEC would not have denied the permit even
if the road were designated a public road. Rather, at most a vegetation or tree buffer would be
required to separate the turkey houses from the road. Accordingly, if the road in dispute is found to
be a public road, appropriate vegetation restrictions can be imposed at that time. In all, when
considered with the numerous restrictions imposed by DHEC, the current lack of a tree buffer for a
road that may not have achieved a "public" status is not a sufficient basis for denying the permit.
3. Contamination of Wells
Third, the petitioners asserts the turkey houses and the spreading of litter will result in the
contamination of drinking water from wells in the area. The testimony demonstrated the operation
is a dry litter disposal system for which there is no risk of water pollution. The turkey houses are
located well away from wells, and the litter is applied to fields as fertilizer in a manner and at a
distance not to contact well sources of water. Accordingly, the permit does not result in the
contamination of well water.
4. McLeod Does Not Own Disposal Lands
Finally, the petitioners asserts McLeod failed to establish that he owned all of the land he listed as
available for spreading the litter from the turkey facilities. The evidence establishes that acreage for
disposal of 390 tons of litter a year is needed if a land disposal method is used. McLeod identified
150 acres that would accommodate 547 tons of litter. A disputed tract of 26 acres was not available
as McLeod indicated, and thus, of the 150 acres listed, only 124 acres would be available. However,
the loss of the 26 acres still leaves a capacity to dispose of 476 tons of litter. Obviously, the 476 ton
limit exceeds the 390 tons required. Therefore, McLeod still meets the need requirement. Further,
even if McLeod lacked the needed acreage, his disposal plan provides for alternative disposal methods
that would meet his waste disposal requirements. Accordingly, the loss of the 26 acres is not a
sufficient basis for denying the permit.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. DHEC has general responsibilities over matters that present threats, whether real or potential,
to the health of the people of the State with such threats including the handling and disposal
of animal wastes. S.C. Code Ann., § 48-1-100(C) (Supp. 1996).
2. DHEC is authorized to require a party to obtain approval of plans for disposal systems for
such wastes. S.C. Code Ann. § 48-1-50(10) (1987).
3. DHEC may grant its approval by the issuance of a permit "under such conditions as it may
prescribe. . . for the installation or operation of disposal systems. . ." S.C. Code Ann. § 48-1-50(5) (1987).
4. It is unlawful to construct or install a waste disposal system until the plans for such have been
submitted to and approved by DHEC through the issuance of a permit. S.C. Code Ann. § 48-1-110(a)(1) (Supp. 1996).
5. Except in compliance with a permit issued by DHEC, it is unlawful for a person to discharge
wastes into the environment. S.C. Code Ann. § 48-1-90(a) (1987).
6. A regulatory body possesses not only expressly conferred powers but also those powers
necessarily inferred or implied to enable it to effectively carry out its duties. Carolina Water
Service, Inc. v. S.C. Public Service Comm'n, 272 S.C. 81, 248 S.E.2d 924 (1978).
7. DHEC's powers are construed liberally when the powers concern the protection of the health
and welfare of the public. City of Columbia v. Board of Health and Environmental Control,
292 S.C. 199, 355 S.E.2d 536 (1987)
8. A waste disposal system includes any system for disposing of "sewage, industrial wastes or
other wastes." S.C. Code Ann. § 48-1-10(12) (1987).
9. "Sewage, industrial wastes or other wastes" are broadly defined and encompass dead animals
and manure resulting from a turkey brooder facility. S.C. Code Ann. § 48-1-10(4), (5), and
(6) (1987).
10. DHEC is principally charged with assuring the health and welfare of the public by controlling
air and water pollution, and, while DHEC's authority is broad, in the absence of a duty related
to the health and welfare of the public, DHEC is not charged with the responsibility of
establishing the land use mix within an area. See S.C. Code Ann. § 48-1-20 (Supp. 1996).
11. Land use decisions are primarily the responsibility of zoning authorities who exercise wide
discretion in decision making. See Bear Enterprises v. County of Greenville, 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).
12. The guidelines are adequately applied and are reasonable for the operation of the turkey
facility and brooder houses.
13. The permit, as restricted, is proper.
IV. ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is issued:
DHEC is directed to issue Construction Permit #18,260-AG to Frank McLeod for a turkey brooder
and turkey housing facility for the proposed location in Kershaw County.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 22nd day of September, 1997 |
