ORDERS:
ORDER
I. Statement of the Case
The Respondent, South Carolina Department of Health and Environmental Control (DHEC) granted
Construction Permit # 18,274-AG to Ruby Karriem (Karriem) in furtherance of Karriem's plans to
construct four turkey growout houses in Fairfield County. Petitioners, Randy and Mary Collins;
David and Janette Mann; Darryl and Melinda Truesdale; Lawrence and Virginia Mann; and Edward
and Elizabeth Alston (petitioners) protested the granting of the permit and sought a contested case
hearing. This matter was heard on January 12, 1998, with jurisdiction granted by S.C. Code Ann.
Regs. 61-72 § 201 and S.C. Code Ann. § 1-23-600(B) (Supp. (1996). After considering all of the
testimony and the law, the permit must be granted.
II. Issues
Is DHEC's issuance of a permit with restrictions to Karriem a proper decision where such permit
authorizes the construction of a waste disposal system for four turkey growout houses?
III. Analysis
1. Positions of Parties
The petitioners essentially assert the turkey barns will produce a nuisance and an unhealthy
environment by contributing to the production of dust, flies and odor, detrimental to the health of
the populace living in the surrounding area.
DHEC and Karriem 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 the
health of the surrounding populace.
2. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
a. General
- DHEC issued construction permit # 18,274-AG to Karriem on May 1, 1997.
2. Karriem seeks to construct and operate a turkey growout facility consisting of four growout
houses to house approximately 22,500 turkeys.
3. Each house will accommodate 3.25 flocks per year and for all four houses will allow a total
of approximately 73,125 turkeys per year.
4. The facility will be located in a rural area of Fairfield County.
5. The general area of the proposed turkey operation is an agricultural area.
6. Local zoning and land use requirements do not prohibit the turkey facility.
7. The turkeys will be raised completely within enclosed houses.
8. The turkeys will arrive at the turkey barns at the age of 5 weeks with a weight of
approximately 5 pounds and will be removed from the houses at an age of approximately 19
weeks and a weight of 32 pounds.
b. Management Plan
9. The turkeys are raised on sawdust and wood shavings producing a dry litter.
10. Karriem 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 1000 tons per year.
13. Karriem submitted a Waste Management Plan prepared by the Natural Resources
Conservation Service, U.S. Dept. of Agriculture, for the land application of litter which 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 litter.
16. Of the acreage to be used for disposal of litter, Karriem either owns the land or has leases or
expects to obtain permission to spread the litter on other land.
17. The waste management plan accommodates sufficient acreage to compensate for 1000 tons
of litter.
18. Before the waste disposal system is placed into operation, Karriem will have the use of
sufficient land or other means of disposal to meet the 1000 ton per year litter demand.
19. The permit with restrictions provides an adequate waste disposal system for four turkey
growout houses.
c. Health and Nuisance Concerns
20. DHEC inspected the proposed site upon which Karriem intends to place the proposed turkey
facility.
21. In granting the permit, DHEC relied upon departmental guidelines and examined the Waste
Management Plan prepared by the Natural Resources Conservation Service.
22. 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.
23. In granting the permit DHEC imposed 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.
24.. Notification letters of the proposed construction were sent to all landowners within 1,000 feet
of the facility proposed by Karriem.
25. DHEC received objections from adjoining land owners.
26. The Karriem property consists of 78 acres with the proposed facility to be placed on the back
side of the acreage.
27. The David Mann family lives within 300 feet of the property line of Karriem and at an
unspecified but further distance from the proposed site of the turkey houses.
28. Members of the David Mann family have suffered from sinus infections and at least one
member exhibits a history of chronic respiratory problems associated with allergies.
29. The Lawrence Mann family lives within 800 feet of the property line of Karriem's property
and at an unspecified but further distance from the proposed site of the turkey houses.
30. The Truesdale family and the Collins family both live within "three or four blocks" of the
Karriem property and at an unspecified but further distance from the proposed site of the
turkey houses.
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 permit restrictions provide adequate measures to control flies and pests.
33. The permit restrictions provide adequate measures to control nuisances from dust, odor, and
noise.
34. The permit restrictions provide adequate measures to control the maintenance and operation
of the facility.
35. The permit restrictions provide adequate measures to control the times and manner of
spreading the manure.
36. The permit with restrictions does not present a health or nuisance problem for the populace
in the area.
d. Water Contamination
37. A creek flows across Karriem's property and Lawrence Mann's property.
38. 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 past.
39. The permit requires that a lower rate of application must be made on shallow soils to avoid
groundwater contamination.
40. Where slopes are over 300 feet long, terraces or surface drains must be installed to slow the
movement of waste over the land.
41. The Karriem operation is a dry litter disposal system presenting no significant risk of water
pollution to well water.
42. The turkey houses are fully enclosed and will deny contact between the turkey manure in the
house and rain water runoff.
43. Well water is accessed in the area at depths of 100 to 110 feet.
44. The operation and maintenance of the turkey facility, the method of spreading, and the
method of accumulating manure will not present a danger of improper water runoff or
groundwater contamination.
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 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. South Carolina Pub. Serv. 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. Bd. of Health and Envtl.
Control, 292 S.C. 199, 355 S.E.2d 536 (1987).
b. Application of DHEC Authority Over Turkey 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 turkey facility. S.C. Code Ann. § 48-1-10(4), (5), and (6) (1987). In the instant case, Karriem seeks to construct four turkey growout
houses that will house a total of 73,125 turkeys per year and will produce animal wastes in the form
of manure and dead animals. Further, Karriem seeks to dispose of the manure and dead animals in
a manner that will discharge such into the environment. Accordingly, Karriem must obtain a permit
from DHEC before she 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, DHEC staff utilized written guidelines in determining whether and under
what restrictions to issue the permit to Karriem. 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 conditions and restrictions. These conditions and restrictions are summarized and
discussed as follows:
1 Condition 1: Karriem must notify the Central Midlands 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 Karriem can remove any manure from the turkey barns.
2. Condition 2: Karriem must obtain prior approval from the Central Midlands District if any
manure or litter is to be land-applied on weekends so as to avoid spreading waste on
weekends since most odor complaints associated with these types of facilities occur during
the spreading of manure.
3. Condition 3: Karriem 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: Karriem 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.
Condition 5: Karriem 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.
Condition 6: Karriem 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, on pasture
or hay land manure cannot be disced into the soil by plowing manure under as is done with
croplands.
Condition 7: If Karriem spreads manure on cropland she must have the manure disced in
within 24 hours of application to avoid creating odors and to avoid potential fly nuisances.
8. Condition 8: Karriem 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 disced into the ground immediately or treated with a fly control method.
9. Condition 9: Karriem 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: Karriem 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: Karriem 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 discing into the soil. Also,
any spillage during transportation must be immediately cleaned up.
Condition 12: Karriem must keep specific information at the facility for DHEC's review and
inspections by the Central Midlands 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. Karriem 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. Karriem is required to identify the fields used
for manure application and to assure that she is not putting all the waste in one spot. Karriem
must record the dates of land application of the waste, keep records of the mortality rate of
the turkeys, and record where the dead turkeys are disposed.
Condition 13: Karriem 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 she is operating in accordance with the Waste Management
Plan and the permit.
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.
Condition 15: Karriem is again directed to cover the waste during transport.
16. Condition 16: Karriem must dispose of dead turkeys by pit burial unless otherwise directed
by DHEC, and must call DHEC 24 hour emergency number for directions in event of a
massive die-off.
Condition 17: Karriem 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.
Condition 18: Karriem 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 Karriem abandons the facility, DHEC must be notified immediately.
Condition 19: If Karriem seeks to transfer the permit to another party, she must notify
DHEC in advance, and submit a written agreement containing the specific date for the
transfer.
Condition 20: At all times Karriem must maintain an all-weather access road to the facility
to enable DHEC to reach the site for operation and maintenance inspections.
Condition 21: Karriem must secure a permit to operate prior to placing the facility into
operation.
B. Petitioner's Objections
When viewed in light of the extensive restrictions and conditions imposed upon Karriem's facility,
petitioners' objections do not warrant denial of the permit.
1. Unhealthy Environment and Nuisance
The petitioners assert the turkey houses will create excessive odor, dust, and flies to the detriment
of the area and especially to the medical conditions of those living in the area. 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).
In the evidence of this case, no persuasive testimony demonstrates a health danger to the residents
of the area due to the turkey houses. Likewise, and more convincing, the concerns regarding odor,
dust and the presence of flies are all subject to sufficient and extensive limitations in the permit
granted by DHEC. Accordingly, the allegations of nuisance and creation of an unhealthy
environment are not valid reasons for denying the permit request.
2. Water Contamination
A creek flows across Karriem's property and Lawrence Mann's property. Additionally some
groundwater wells are in the area. The evidence does not establish that contamination is likely.
First, the permit prohibits applying waste within 100 feet of watercourses. Thus, application of
manure will not present a significant danger. Second, the permit requires that a lower rate of
application must be made on shallow soils to avoid groundwater contamination. Here the soils are
not a significant source of concern since groundwater wells are generally at 100 to 110 feet. Third,
the Karriem operation is a dry litter disposal system presenting no significant risk of water pollution
to well water. Finally, the turkey houses are fully enclosed and will deny contact between the turkey
manure in the house and rain water runoff.
Based on all the evidence, the operation and maintenance of the turkey facility, the method of
spreading, and the method of accumulating manure will not present a danger of improper water
runoff or groundwater contamination.
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. South Carolina Pub. Serv. 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. Bd. of Health and Envtl. 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 growout 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 growout houses.
13. The petitioner's objections, when viewed in light of the extensive restrictions placed upon
Karriem, do not warrant prohibiting DHEC from granting the permit.
14. The permit, as restricted, is proper.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DHEC shall grant Construction Permit # 18,274-AG to Ruby Karriem for four turkey growout
houses in Fairfield County.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
Dated: January 14 , 1998
Columbia, South Carolina |
