ORDERS:
ORDER
I. Introduction
The South Carolina Department of Health and Environmental Control (DHEC) granted Construction
Permit # 18,269-AG and NPDES permit #SC0047686 to ISE Newberry, Inc. (ISE). Both permits
were sought by ISE to construct eight caged layer houses and an egg washing facility in Newberry
County. The Town of Silverstreet, Silverstreet-Saluda River Protection Association, J. Carlene Fox,
Gwen Traylor, Katura and Richard Neel, Anne and Dick Neel, Maffett Fant, Marion Long, Randy
and Carolyn Parrish, and Corey and Ellen Hunt (collectively referred to as the Town or Town of
Silverstreet) protested the granting of the permits.(1)
The Town's most focused objection to the NPDES permit is that the egg washing facility and related
sprayfield will produce unpleasant vapors or fumes which will travel to adjacent properties and deny
those property owners the full enjoyment of their property. On the evidence produced in this case,
while some odor may result, such a factor is an insufficient basis for denial of the NPDES permit.
Unlike the single predominate challenge to the NPDES permit, the Town presents five objections
to the Construction Permit. These five are that DHEC failed to adopt regulations, DHEC improperly
relied upon unpromulgated "guidelines," DHEC ignored its own guidelines, DHEC failed to weigh
applicable factors properly, and DHEC failed to recognize the existence of a nuisance created by the
layer houses.
None of these arguments are sufficient to deny the Construction permit. While perhaps advisable,
DHEC is not required to adopt regulations for layer houses, DHEC has not used any "guidelines"
as unpromulgated regulations, DHEC did not ignore the publicly disseminated guidelines, DHEC
properly weighed the applicable permit factors, and DHEC was not required to find the granting of
the permit created a nuisance.
II. NPDES Permit
A. Findings of Fact
ISE processes layer eggs for distribution to and consumption by the public. To assure a sanitary
product, the eggs are subjected to a washing procedure which produces wastewater. The removal
and disposal of that wastewater is the subject of this dispute.
1. Facility
Removal of the wastewater from the egg processing plant begins by moving the wastewater into a
treatment facility. In this case, the wastewater facility will be constructed so as to house duplicate
equipment. The existence of duplicate equipment will allow repairs -- even to the extent of
wholesale replacements of defective equipment -- to be accomplished with little or no environmental
impact since the duplicate equipment would continue to function during the repair period.
The wastewater facility here will contain planned safety features. For example, chambers employed
in the system will have several days of holding capacity. Odor will be minimized since aeration will
be permitted only at strategic points throughout the system. The setback of the sprayfield will be 120
feet from the nearest road, 180 feet from the nearest property line, and 700 feet from the nearest
dwelling. The system will permit the monitoring of any runoff at the site since rainwater runoff will
be captured and discharged through controlled fiberglass flumes to an on-site, unnamed stream.
Specifically as to odor associated with the facility, no significant likelihood exists that concentrated
odors will be produced by either the wastewater facility or sprayfield. While dechlorinazation of the
wastewater will produce some odor, the odor released will not be significant. Rather, a significant
odor problem from the waste treatment facility is only likely to occur if the facility is run improperly
or negligently or if the aeration chamber is inadequately sized. No persuasive evidence demonstrates
that the waste treatment facility will be run improperly or negligently or that the aeration chamber
is inadequately sized.
2. Sprayfield
After several treatment stages in the wastewater facility, the wastewater will be discharged onto a
4.42 acre area used as a sprayfield. The sprayfield is subject to three monitoring wells. These wells,
one of which will be up-gradient and two down-gradient, will provide an early alert should a concern
arise.
The sprayfield will have a sufficiently adequate covering of vegetation consisting of small pines and
tall grass to accommodate the wastewater to be discharged. The vegetation and supporting soil will
receive the wastewater in the form of a spray created by industrial sprinklers arranged to prevent an
overlap of discharge.
No significant degree of runoff will be presented by the sprayfield. The slope of the sprayfield will
be less than 10% and the rate of loading of wastewater onto the sprayfield will be properly within
the value authorized by regulation. Likewise, the required rest period for the sprayfield is properly
within limits.
B. Conclusions of Law
Here, the facts considered as a whole when applied to the law governing NPDES permits requires
that DHEC issue the permit to ISE. No environmental impact and no significant odor concern will
be created by the wastewater facility and sprayfield sufficient to deny the NPDES permit. Indeed,
the facility will process the wastewater in a manner that will minimize the impact upon the
environment.
Environmental impact is a concern of DHEC since it has the duty to abate, control and prevent
pollution. S.C. Code Ann. Sec. 48-1-20 (1987). In carrying out these duties, DHEC is authorized
to take all necessary or appropriate actions to secure for South Carolina the benefits of the Federal
Water Pollution Control Act and any other federal and state acts concerning water pollution control.
S.C. Code Ann. Sec. 48-1-50(17) (1987). As a means of controlling water pollution, statutory notice
is given that it is unlawful to discharge into the environment any sewage, industrial wastes, or other
waste except in compliance with a permit issued by DHEC. S.C. Code Ann. Sec. 48-1-90 (1987).
DHEC issues permits to discharge wastewater into the environment so long as the permit is
consistent with the regulations governing the National Pollutant Discharge Elimination System
(NPDES) permit program. S.C. Code Regs. 61-9 (Supp. 1997). In carrying out the permit program,
DHEC acts to protect the health and welfare of the public by insuring the waters of South Carolina
are as free of pollutants as possible. DHEC's authority in this area is construed liberally. City of
Columbia v. Board of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (S.C.
1987).
Against this legal framework, the Town of Silverstreet asserts the NPDES permit is improper. In
particular, the Town of Silverstreet argues the sprayfield will be too close to a roadway and too close
to adjacent property owners. In the Town's view the wastewater facility and sprayfield will produce
unpleasant vapors or fumes which will travel to adjacent properties and deny those property owners
the full enjoyment of their property. I cannot agree.
The sprayfield can be no closer than 100 feet from a property line and no closer than 200 feet from
the nearest occupied building such as a dwelling. S.C. Code Ann. Regs. 61-9.505 Part C 505.42b-(8). Here, the closest "property line" is that of a roadway at a distance of over 120 feet, the nearest
property line of ISE's neighbors is 180 feet, and the nearest occupied dwelling is 700 feet from the
sprayfield. Each of these measurements exceeds the requirements of the regulation. Additionally,
nothing in this record demonstrates that the regulation is improperly applied.
Thus, under the facts of this case applied to the controlling law, the sprayfield violates no existing
regulation or law since the sprayfield will impose no significant environmental impact upon the
surrounding community. In addition, the wastewater facility itself will treat the wastewater in a
manner that minimizes the impact of the discharge upon the environment. Finally, the evidence in
this case demonstrates no likelihood of significant odors being produced by the wastewater facility
and sprayfield. Accordingly, the NPDES permit must be granted.
III. Construction Permit
The Town of Silverstreet asserts no permit should be issued to ISE to construct an egg producing
facility consisting of eight caged layer houses. Five arguments are presented by the Town. These
five are that DHEC failed to adopt regulations, DHEC improperly relied upon unpromulgated
"guidelines," DHEC ignored its own guidelines, DHEC failed to weigh applicable factors properly,
and DHEC failed to recognize the existence of a nuisance. Each argument is addressed in turn after
a general statement of the background facts of this case.
A. Findings of Fact As to Background
The background of this controversy is informative. It identifies the general nature of the operation
being objected to, presents the basic facts surrounding the early stages of this dispute, and establishes
the general agricultural characteristics of the community.
The nature of the operation is made plain by ISE's application. ISE seeks a permit to construct and
operate eight layer houses. From an environmental point of view, the houses will annually produce
15,500 tons of poultry waste from 960,000 laying chickens. An obvious need arises for utilizing a
proper method to dispose of the waste and for a proper method of operating the houses. The Town
of Silverstreet objects by asserting that the waste disposal and the operation of the facility will be
environmentally detrimental to the area.
The first objections to ISE's application began soon after notice of the planned facility was given by
ISE and DHEC to area residents. ISE officials gave notice to several neighboring landowners that
the application had been filed. The notice allowed the landowners to express their consent to the
proposed permits. None of the contacted landowners gave their consent. Likewise, the Town of
Silverstreet, a part of the community very near the planned facility, also did not approve of the layer
houses.
To assure the entire community was aware of the facility, DHEC both posted and published notice
of the ISE permit application. As a result, DHEC received several written objections to the permit
and subsequently held a public comment hearing on March 4, 1997. At that hearing, a number of
individuals testified in opposition to the proposed permits.
After a consideration of the opposition, on June 9, 1997, DHEC proposed the issuance of permit No.
18,296-AG to allow construction of the eight caged high-rise layer houses. The Town of Silverstreet
then filed a timely request for a contested case.
A major concern of the Town of Silverstreet is the location of the layer houses in relation to the town
itself as well as to individual property owners in the area. In assessing the environmental and health
impact of an egg production facility with related layer houses on the Town of Silverstreet, the
general character of the area is relevant.
The overall area of Silverstreet, as well as Newberry County in general, is one accustomed to
farming. The diversity of agricultural uses includes pasture land, tree farming, hog facilities, chicken
facilities, and beef cattle. Within several square miles of the planned ISE facility, numerous
livestock farms are in operation. In particular as to chicken and egg production, the history of the
community demonstrates that in 1980 approximately 1 million chickens were in the area. Currently,
approximately 300,000 chickens are present. In fact, the ISE property that is the subject of this
dispute has been previously utilized for dairy, beef cattle, and hog farms.
The Town of Silverstreet, population 165, is in this agricultural area. Its town limit is marked by a
circle with a radius of approximately one mile. While the majority of the development is in the
center of town (town center contains a town hall, a fire station, and a church), property owners live
throughout the town limits.
In relation to the town, the proposed site of the layer houses is approximately one-half mile west of
the town limits of Silverstreet and is near the intersection of Highway 34 and Werts Road in
Newberry County. More particularly, the site is situated on the northwestern section of ISE's
property adjacent to a county waste and collection center.
B. Issue Analysis
This factual background provides the context for addressing each of the five issues raised by the
Town of Silverstreet.
1. Lack of Regulations
The Town of Silverstreet argues that S.C. Code Ann. § 48-1-90 requires persons to obtain a permit
to discharge chicken manure into the environment and that S.C. Code Ann. § 48-1-30 requires that
the permit can be validly issued only if regulations establish the criteria for issuance. The basis for
the position is chiefly the language of § 48-1-30 which states that DHEC is required to issue
regulations "to implement this chapter." While I agree a permit is required, I disagree with the
Town's view that DHEC is mandated to issue substantive regulations identifying the criteria for the
permit.
a. Findings of Fact
It is undisputed that no regulations have been promulgated by DHEC establishing the permitting
criteria governing the layer houses which ISE seeks to undertake.(2) Indeed, the Town of Silverstreet
relies upon precisely that fact in arguing that DHEC must deny ISE's application. In other words,
the lack of regulations prohibits DHEC from granting a permit to ISE.
b. Conclusions of Law
Certainly, 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. Sec. 48-1-100(C) (Supp. 1997). In keeping with that responsibility, DHEC
is authorized to require a party to obtain approval of plans for disposal systems for wastes. S.C.
Code Ann. Sec. 48-1-50(10) (1987).(3)
However, while I agree with the Town of Silverstreet that a permit is required, three reasons
persuade me to conclude that DHEC is not mandated to establish by regulation the criteria governing
the issuance of the construction and waste disposal permits in dispute in this case.
First, DHEC may issue a permit "under such conditions as it may prescribe . . . for the installation
or operation of disposal systems . . ." S.C. Code Ann. Sec. 48-1- 50(5) (1987). Here, the permit in
dispute concerns a waste disposal system since a waste disposal system includes any system for
disposing of " industrial wastes or other wastes." S.C. Code Ann. Sec. 48-1-10(12) (1987). Whether
the manure is waste from a trade or business or merely "other wastes" (e.g. dead animals) the
statutory definitions are broadly written so as to encompass both dead animals and manure resulting
from raising hens in a layer house as part of an egg production facility. S.C. Code Ann. Sec.
48-1-10(5), and (6) (1987). Accordingly, given the permitting of a waste disposal system, the
applicable language of "under such conditions as it may prescribe" allows DHEC discretion to issue
permits based upon a rational analysis of the pertinent factors. The language does not mandate the
issuance of regulations establishing the permit criteria. Rather, DHEC may set "such conditions as
it may prescribe." S.C. Code Ann. Sec. 48-1- 50(5) (1987).
Second, while it is true that regulations are mandated by § 48-1-30, that section, when read within
the context of the statute as a whole, only requires DHEC to 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
statute does not require the promulgation of regulations on substantive criteria for permits since the
statute relates to DHEC establishing "matters relating to procedure." No requirement of § 48-1-30
directs DHEC to address the substantive rules or the application of criteria to facts needed to allow
or prohibit the granting of construction permits for layer houses.(4)
Third, the applicable statutes specifically authorize discretion -- not a mandatory duty -- in issuing
regulations for the type of permit here in dispute. The applicable statutory language governing
regulations for waste disposal systems states that DHEC "may" promulgate regulations governing
the disposition of "garbage or sewage and any like refuse matter." See S.C. Code § 44-1-140(11)
(1984). Such discretionary language relieves DHEC of any mandatory duty to issue regulations for
the permit here. See Edisto Aquaculture Corp. v. South Carolina Wildlife and Marine Resources
Dept., 311 S.C. 37, 426 S.E.2d 753 (1993) (in the absence of mandatory language requiring the
promulgation of regulations, the permitting process is not fatally flawed merely because the agency
exercises discretion in its permitting process); cf. Captain's Quarters Motor Inn, Inc. v. South
Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991) (the permitting process is fatally
flawed when an agency that is required to promulgate its tests for granting or denying a permit
applies unpromulgated tests).
2. DHEC's Guidelines
Since the permit criteria are not required to be established by regulation, the issue becomes one of
examining the factors relied upon by DHEC in its approval of the ISE application. The factors
chosen by DHEC in granting the permit, the Town of Silverstreet argues, are improper factors since
DHEC improperly relied upon guidelines. The Town of Silverstreet argues the guidelines are
forbidden unpromulgated regulations in contravention of S.C. Code Ann. § 1-23-10(4).
Accordingly, the dispute becomes deciding whether the guidelines issued by DHEC are of a
character that must be issued the form of a regulation. I think not.
a. Findings of Fact
DHEC has issued guidelines relevant to factors bearing upon the type of permit that ISE seeks. One
guideline was published in April 1985 and is known as "Environmental Guidelines and Procedures
for Dairy, Poultry, Swine, Cattle and Other Animal Operations and Peach Packers in South
Carolina," The second guideline was published on December, 1, 1994 and is known as "Agricultural
Facility Permitting Requirements of the Bureau of Water Pollution Control." Both documents
(hereafter identified as guidelines) address essentially the same factors.
While distributed to the public, the guidelines have not received final approval from the DHEC
Board. Rather, the 1984 guideline carries the names of two individuals as authors of the document
and the document shows it is a publication of an identified division of DHEC, the Division of
Industrial and Agricultural Wastewater. Likewise, the 1994 guideline shows it is issued by the
Bureau of Water Pollution Control. No persuasive evidence presents proof of final approval of the
publications by the DHEC Board.
Both publications enumerate "Site Selection Criteria" and recognize the importance of considering
wind direction, topography, and distance from neighboring property and dwellings when siting
animal production barns. In particular, DHEC's site selection guide suggests 1,000 feet as the
distance from the animal barn to the lot line of the property. Id. at 15. However, DHEC's intent is
to provide the 1000 foot measurement as a guide only. In other words, the measurement is only
general information to the public and is not intended to create a binding rule for site selection.
Consistent with this intent, DHEC's actual field application of the guidelines demonstrates DHEC
has not attempted to bind the public to the measurement.
b. Conclusions of Law
In approving ISE's application, DHEC used factors that it believed were consistent with proper
health and environmental concerns. As previously discussed, no statute mandates that DHEC issue
a regulation for layer houses. However, the guidelines are written statements voluntarily issued and
must be examined to determine if the statements made are within the definition of the term
"regulation" so as to require the guidelines to be promulgated as a regulation.
Statutory language broadly defines "regulation" as "each agency statement of general public
applicability that implements or prescribes law or policy or practice requirements." S.C. Code Ann.
§ 1-23-10(4) (Supp. 1997). An agency statement that "implements or prescribes . . . requirements"
is a statement that mandates specific actions or consequences. Indeed, the mandatory tone used by
the definition is consistent with the well recognized nature of regulations. Regulations are
statements designed to create a "binding norm" for which the agency is no longer free to exercise
its discretion to follow or not follow a general policy in individual cases. Home Health Service, Inc.
v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); Ryder Truck Lines, Inc. v.
United States, 716 F.2d 1369, 1377 (11th Cir. 1983). Clearly, statements that rise to the level of a
regulation must be "more than suggestions." Borden, Inc. v. Department of Revenue, 595 P.2d
1372, 1374 (Ore. 1979). More particular to this case, the position being advanced by the agency has
to be intended to rise to the level of a position having the force and effect of law. Wacha v.
Kandiyohi County Welfare Board, 242 N.W.2d 837 (Minn. 1976).
How can one tell when an agency statement creates a "binding norm"? While other indicators exist,
three reasonable inquiries are who gave final approval to the statement, what has the agency
expressed as to its intent, and how has the policy been applied in the field.
A significant indicator is whether the document in dispute received final agency approval by the
governing body of the agency under review. See Home Health Service, Inc. v. South Carolina Tax
Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994) (policy statement not issued by the commissioners
of the Tax Commission and thus, no final agency approval had been given). Here, no final agency
approval has been established.
A second indicator is whether the agency itself expressed an intent that the statement is binding on
the public. See Hines v. United States, 60 F.3d 1442 (9th Cir. 1995) (the United States Postal
Service's document that expressed statements related to transportation employees' fitness to be a
driver was identified by the Postal Service as being a "rule"). Here, DHEC's intent is to provide
information to the public and not to create binding rules for site selection. DHEC's witnesses
testified to that conclusion and no contrary persuasive evidence demonstrates otherwise.
Finally, the actual application of the guidelines in the field is a valid consideration. See Professionals
and Patients for Customized Care v. Shalala, 56 F.3d 592 (5th Cir. 1995) (examination of the actual
use in the field of a nine point policy statement led to the conclusion that a policy statement was not
a binding norm). In other words, in practice has DHEC treated the guidelines as binding upon the
public. The answer is no; the guidelines are applied as just that: guidelines.
For example, in the current case the Fox dwelling (the physical house itself) is 1,075 feet from one
of the layer houses but the property line is less than a 1,000 feet away. The guideline states the layer
house should be 1000 feet to the property line. Obviously, DHEC is not applying the guideline as
a binding norm. The same action was taken by DHEC in Haley Farms v. DHEC, supra. in that
there the poultry barn was only 200 feet to a neighbor's property line. Accordingly, actual field
application demonstrates DHEC has not applied the guidelines as binding norms.
In summary, the guidelines are not invalid, unpromulgated regulations. Here, no final agency
approval of the guidelines has been established. DHEC's intent is to provide information to the
public and not to create binding rules for site selection. Actual field application demonstrates DHEC
has not applied the guidelines as binding norms. Accordingly, the guidelines are non-binding.
3. DHEC's Disregard of the Guidelines
Even if the guidelines are non-binding, the Town of Silverstreet further argues DHEC is not free to
ignore the guidelines. The argument is that DHEC has in fact ignored the guidelines and DHEC's
disregard of the guidelines requires denying the permit request. I cannot agree with the argument
since the central premise is incorrect: DHEC has not ignored the guidelines.
a. Findings of Fact
The permit contains 23 conditions imposed by DHEC. Of those conditions many have their basis
in DHEC's consideration of the guidelines.
b. Conclusions of Law
Rather than ignoring the guidelines, DHEC examined and gave consideration to virtually all of the
factors suggested by the guidelines. The permit is replete with evidence that DHEC not only gave
significant consideration to the guidelines but applied many of the factors in granting the permit.
Such an examination establishes that DHEC did not ignore the guidelines.
4. DHEC's Weighing of the Applicable Factors
Rather than an argument premised on DHEC ignoring the guidelines, the Town of Silverstreet more
precisely argues that DHEC has simply given less credence to the relevant factors than the Town of
Silverstreet believes should have been given. In other words, the Town of Silverstreet argues that
DHEC weighed the relevant factors incorrectly and thus improperly decided to grant the permit.
Four major areas present the most significant factors to be weighed. These four are the project's
likely impact on water sources, construction and operation of the layer houses, impact on
neighboring property owners, and impact on property owners some distance from the ISE property.
None of the factors weigh in favor of denying the permit.
a. Likely Impact on Water Sources
As a part of the siting review, DHEC reviewed the northwest section of the ISE property for
proximity to water and water sources in an effort to gauge the impact on the environment.
i. Findings of Fact
Identifying the water flow is an important concern. In this case, just to the south of the proposed
facility, an unnamed tributary runs southwest for approximately one and 2/3 miles where it joins
Turner's Branch. Turner's Branch runs approximately 2/3 mile west/southwest before it joins the
Little River. The Little River flows for approximately 9/10 of a mile before joining the Saluda
River. The Saluda River runs for approximately 2/3 of a mile before it comes to the point where
Newberry County draws its waters for its water treatment plant. Finally, the Saluda River runs for
an additional six miles before it flows into Lake Murray.
Establishing the proximity to water bodies is relevant. For example, the proposed site is over 100
feet from any watercourse, over 100 feet from any private well, and at least 200 feet from any public
well. In addition, the layer houses (which will contain the manure) are fully enclosed so as to prevent
contact between the manure and rain water runoff from the site.
Finally, the topography of the area must be considered. The land upon which the site sits is
adequately drained and is not in a flood plain. Further, the layer houses are not located in any
wetlands, and the terrain slope is moderate with no layer houses located on a hill or in a lowland
area.
ii. Conclusions of Law
Three reasons explain why the layer houses do not present an adverse impact upon water or water
sources in the area.
First, as addressed in the facts, the existing flow of water in the area is well known. This absence of
any ambiguity in water flow gives a high degree of controllability and certainty. Accordingly,
judging the impact upon water quality is not hampered by speculation or uncertainty.
Second, water quality in the area is not threatened by the layer houses since the proximity of water
to the site demonstrates an adequate separation from the facility. The houses are over 100 feet from
any watercourse, over 100 feet from any private well, and at least 200 feet from any public well.
Further, enclosed layer houses prevent contact between the manure and rain water runoff.
Finally, even if water runoff were a concern, the topography of the area presents no basis for
concluding the facility will adversely impact water quality. The site is adequately drained, not in a
flood plain, not located in any wetlands, and the terrain slope is moderate. Thus, considered as a
whole, the factor of the impact upon water quality is not a factor weighing in favor of denying the
permit.
b. Construction and Operation of the Houses
While the layer houses present no water quality impact, potential adverse impacts may result from
the construction and operation of the houses.
i. Findings of Fact
The layer houses, as designed, will utilize a system called a hybrid Turbo-Negative/tunnel-ventilated
system. The use of such a system will minimize impacts upon the environment.
Under the system, each of the houses will have the same physical layout. Each house will be 58.5
feet wide and 540 feet long with each of the eight houses holding 120,000 laying hens. Each house
will have six rows of cages running the length of the building. Space to walk on each side of the
cages is provided. Each end of the house will be contain eighteen outward blowing fans. With the
exception of air tight doors on one side, the sides and bottom of each house will be lined with
concrete. The hens will be housed in the upper portion of the facility so that the manure from the
birds can be directed to a chamber at the bottom of the facility. In the bottom chamber, the manure
is dried and stored.
The drying of the manure is a vital step in the operation of the houses. To accomplish the drying
process, each house will be environmentally controlled so as to allow regulating the wind currents,
temperature, and humidity inside each house. The system is designed to keep currents of air flowing
over the piles of manure. This constant movement of air over the manure promotes its dryness and
minimizes areas that could become suitable for the production of flies. Accordingly, each house will
be climate controlled using computerized thermostats and mechanically controlled fans and air
openings. The system will maintain a constant temperature to promote drying the manure and to
maintain the moisture level within the manure at 30% and in some instances to percentages as low
as 15%. The production of flies is greatly minimized when manure moisture is 30% or less.
Further, the system contains sufficient safety features to assure proper control within the houses. For
example, dead air spaces will be prevented by the use of "pit fans" in the bottom of the houses.
Additionally, waste will not be stockpiled outside of the houses but rather the waste will be removed,
transported, and applied according to a waste management plan. Also, remote location control is an
available capability since the facility can be computer controlled from a properly equipped and
remotely located laptop computer. Finally, should a malfunction occur, the houses will contain
alarms to warn of power failures as well as rises in temperature.
ii. Conclusions of Law
Under the facts of this case, both the construction and the operation demonstrate the environmental
impact will not be significant enough to require denying the permit. First, the use of the hybrid
Turbo-Negative/tunnel-ventilated system will minimize impacts upon the environment by reducing
odor and denying the production of excessive flies. Second, the system's use of safety features will
assure proper environmental control of the layer houses. Third, waste will be removed and applied
according to a waste management plan. Finally, proper control of the layer house environment is
established due to an available capability for remote management and, should a malfunction occur,
the existence of adequate warning alarms. Accordingly, the construction and operation of the houses
does not weigh in favor of denying the permit.
c. Impact on Neighboring Property Owners
Notwithstanding the advantages associated with the hybrid Turbo-Negative/tunnel-ventilated system,
neighbors of ISE are concerned that they will be adversely affected by the layer houses. In this case
several neighbors expressed concerns that their proximity to the ISE layer houses would interfere
with their health and prevent them from having a full enjoyment of their property. Accordingly, an
examination of the proximity to neighboring properties is important in that both health and
environmental concerns of residents are relevant considerations.
i. Findings of Fact
Extensive testimony addressed the concerns for odor, dust, and potential fly problems that may affect
occupants of neighboring properties. In assessing such impact, four areas of dispute arose:
measurements to nearby residents, health and environmental impacts due to proximity to the layer
houses, meteorological influences, and DHEC's responsibility for land use determinations.
Since testimony as to distances was sometimes less than certain, I have chosen to rely upon a scaled
map of the area as being the most persuasive evidence. Based upon map measurements, Richard and
Katura Neel reside just over 2,050 feet from the proposed layer houses. Dick and Anne Neel, who
live at 265 Silverstreet Road, are located further away and are to the north as well as in an uphill
location. Floyd Randy Parrish lives approximately 2,050 feet from the proposed barns, and Gwen
Traylor lives approximately 1,980 feet west of layer house # 8, the closest layer house to her
residence. The resident closest to the layer houses is Carlene Fox. Her residence is approximately
1,075 feet west of the nearest layer house. Maffett Fant owns property approximately 1,200 feet
north-northwest of the proposed facility and owns property to the west of the facility. Marion Long
owns property 1,200 feet southeast of the proposed facility.
Given these distances, some residents of the immediate area expressed concerns due to existing
medical conditions. Richard C. and Katura Neel are aged and in very poor health. Mrs. Neel has
lost 75 pounds in the last year and is very upset by the proposed facility. Carlene Fox has had health
problems requiring hospitalized. Randy Parrish's wife has allergy problems requiring medication.
Similarly, several families have children or grandchildren with breathing and allergy concerns. For
example, Ellen Hunt's daughter is on medication for allergic reaction to airborne particles.
Based upon the above distances and conditions, the most relevant inquiry for addressing the health
and environmental impacts is "what distance to surrounding neighbors is proper for a layer house
facility such as that proposed by ISE?" The answer is the perhaps unsatisfying but nonetheless
necessary one of "it depends." In other words, in the absence of a mandate by statute or regulation
establishing a distance measurement, all relevant factors must be considered on a case by case basis.
Experts testifying at the hearing presented differing views on an acceptable distance for the layer
houses here in dispute. Dr. White testified that facilities such as the layer houses will create the
potential for impacts from odor, dust, and flies unless neighboring homes are protected by a half
mile, or 2,640 feet and that a setback of 1,000 feet is an absolute minimum standard. The 2,640 foot
distance was derived from previous conclusions espoused by Dr. Clyde Barth in 1984. In 1994, the
American Society of Agricultural Engineers suggested that it is "desirable" to locate poultry feeding
facilities 1/4 to ½ mile from neighboring residences.
The impact due to meteorological conditions is also a concern in assessing the impact of odor, dust,
and potential fly problems on the health and environment enjoyed by occupants of neighboring
properties. Weather conditions in the area on many occasions will allow pollutants to become
trapped by ground inversion. Under such conditions, during the night, dust and odor seeps into low
lying areas allowing a build up and permitting a stagnant air mass.
While disputed, the most persuasive evidence shows the stagnation will have a tendency to remain
primarily over ISE's property. Further, however, how or when or in which direction the air mass
may finally move is disputed. Testimony and photographs of similar stagnant air masses established
the existence of the ground inversion events. However, there is a lack of persuasive evidence
allowing a conclusion that the neighboring properties will be adversely environmentally impacted.
Rather, before such a conclusion could be reached, a more comprehensive approach, an air
dispersion model, would be required. When utilized, the model accounts for such factors as wind
directions and average speeds, the density of the actual particles or vapors, the amount of particles
exiting the source, the target concentration level that one is trying to monitor, etc. The evidence does
not contain this data.
In summary, no absolute prohibitive distance has been set upon which one may conclusively state
that the layer houses are too close to neighboring properties. Rather, each facility must be evaluated
on its own merit. In particular, DHEC asserted its mention of 1,000 feet was not a requirement but
instead was only a guide to be considered with numerous other factors.
ii. Conclusions of Law
A determination that the proximity of neighboring properties does not establish an endangerment to
the health or environment of the residents in the area must be reached utilizing reasoned judgment
and must be based upon adequate determining principles and a rational basis. Deese v. South
Carolina State Board of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985). This record
demonstrates the existence of a rational basis correctly applied by DHEC in approving the ISE
application. The layer houses do not present a medical concern or improper environmental impact
sufficient to deny the permit.
As to health concerns, while testimony exists that members of some families in the area have health
concerns and conditions, the medical testimony does not persuasively establish the existence of
negative health ramifications to a degree that would require denying the permit. Additionally, the
persuasive evidence does not establish that current health problems will be aggravated. While
disputed, when the evidence is considered as a whole, no negative medical or health impact has been
proven to a magnitude that warrants denying the permit.
As to environmental concerns, under the total facts of this case, the layer houses are not so close to
neighboring property as to require denial of the permit. Three primary reasons support this
conclusion: the technologically advanced design of the houses involved in this dispute, the absence
of convincing meteorological data showing a continuous or at least long-term adverse impact upon
neighboring properties, and the overall agricultural nature of the area.
First, given the technologically advanced design of the houses involved, Dr. White's testimony is
not persuasive enough to warrant a denial of the permit. His testimony supports the fact that
technological improvements have occurred since Dr. Barth's 1984 suggestion of a ½ mile distance.
Likewise, in Dr. White's analysis of a proper distance, only minimal, if any, consideration was given
to the technological advancements in layer houses such as that of the hybrid Turbo-Negative/tunnel-ventilated house which will be used by ISE. Rather, older style houses (often referred to as
California style houses) were open on the sides and provided a greater opportunity for fly outbreaks
and odor concentration. In fact, Dr. Hickle, an expert in fly development, testified (and I agree) that
the modern hybrid Turbo-Negative/tunnel-ventilated houses to be used by ISE greatly reduce odor
by keeping the manure dry and correspondingly reduce fly infestation and outbreaks.
In addition, the 1/4 mile distance suggested by the ASAE is only a general suggestion that must be
considered with other factors. Rather, the ASAE admits the generality of its suggestion when it
states the facility should be located at a "reasonable distance." Further, the general nature of the
suggestion does not specifically account for the design utilized by ISE. In fact, Dr. White admitted
that he had employed a somewhat flexible standard in his Ohio experience and in some cases relied
upon distances of between 1,000 and 1,500 feet. In the instant case, it is noteworthy that the closest
residence, Carlene Fox's residence, is approximately 1,075 feet west of the nearest layer house.
Second, while conflicting testimony was presented, the impact due to meteorological conditions does
not make the distance to neighboring properties a basis for denying the permit. John Purvis,
meteorological expert for the Town of Silverstreet, testified that pollutants can become trapped by
ground inversion allowing a build up and permitting a stagnant air mass. The most persuasive
evidence, however, shows the stagnation would have a tendency to remain primarily over ISE's
property. Further, there is a lack of persuasive evidence allowing a conclusion that the neighboring
properties will be adversely environmentally impacted. Rather, an air dispersion model would be
required showing such factors as wind directions and average speeds, the density of the actual
particles or vapors, the amount of particles exiting the source, the target concentration level that one
is trying to monitor, etc. The evidence does not contain this data. Accordingly, the evidence is
insufficient to conclude the meteorological conditions warrant a denial of the permit.
Third, DHEC is not charged with the responsibility of establishing the land use mix within an area.
Rather, 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, even if DHEC has some environmental responsibility for compatibility with the
community, this facility is compatible.
Silverstreet, as well as Newberry County in general, is not incompatible with agricultural activities.
Such activities includes pasture land, tree farming, hog facilities, chicken facilities, beef cattle, and
dairy farms. Within several square miles of the planned ISE facility, numerous livestock farms are
in operation. In particular as to chicken and egg production, the history of the community
demonstrates that in 1980 approximately one million chickens were in the area. Currently,
approximately 300,000 chickens are present. In fact, the ISE property that is the subject of this
dispute has been previously utilized for dairy farms, a beef cattle farm, and hog farms. Such past and
current activities support the permit being sought by ISE.
Considering the evidence as a whole, the layer houses are not so close to neighboring property as to
require denial of the permit. Accordingly, the impact on neighboring property owners is not a factor
weighing in favor of denying the permit.
d. Impact on Property Owners Some Distance From ISE
A denial of the permit is also sought on the basis that the disposal of the manure will adversely
impact property further away from the ISE site itself. The argument is that the plan for the disposal
of the manure is inadequate. Under the evidence of this case, the disposal plan is proper.
i. Findings of Fact
Under the disposal plan relied upon by DHEC, natural fertilizer in the form of manure will be spread
on the fields of farmers who agree to participate in the disposal plan. The waste management plan
originated by the National Resource Conservation Service (NRCS) and adopted by ISE addresses
specific concerns. For example, primary concerns addressed by the plan include assuring the
application equipment is calibrated so that specified application rates are met, applying the manure
in accordance with required setbacks (typically 100 feet from watercourses and 200 feet from any
dwelling), prohibiting waste transport units from spilling manure onto roads or unauthorized
locations, and requiring that the waste transport units be cleaned between loads. Specifically, the
plan creates "no spread zones" around bodies of water and water courses and reduces the amount to
be spread on areas of inclines so as to avoid runoff. Further, the waste management plan itself is
incorporated into the permit such that a violation of the plan would serve as a violation of the permit.
To accomplish the waste management plan, ISE has over 4,500 acres upon which to spread the waste
produced by the layer houses. If ISE had been approved for 1.3 million layer hens it would have
needed only 3,868 acres for waste disposal.
ii. Conclusions of Law
In developing the waste management plan, NRCS relied upon technical standards designed to ensure
that a farmer adopting an NRCS plan is in compliance with environmental laws. Based upon
published topographical surveys and detailed surveys of soil types and plant life, the NRCS applied
applicable standards in developing the waste management plan to be used by ISE. Accordingly, ISE
properly relied upon the waste management plan and DHEC properly considered that plan in
approving ISE's application.
Further, the waste management plan adopted by ISE exceeds the waste disposal requirements for the
eight layer houses and is a proper plan for safely disposing of the manure into the environment.
Thus, if applied according to the waste management plan, the manure will not present a problem of
uncontrolled run-off from a concentrated area of manure, and the manure that is spread will be
absorbed by the soil and plant life in a manner that will not saturate the ground. Therefore, the waste
management plan does not impact property further away from ISE's facility by an improper disposal
of the manure. Accordingly, the impact on property owners some distance from ISE does not weigh
in favor of denying the permit.
5. DHEC's Failure To Recognize A Nuisance.
Wholly independent of the siting criteria, the Town argues the permit should be denied since
granting the permit will allow the creation of a forbidden nuisance. See Lever v. Wilder Mobile
Homes, Inc., 283 S.C. 452, 322 S.E.2d 692 (Ct. App. 1984) (nuisance results from the use of
property in such a way that annoying or injurious odors are emitted).
a. Findings of Fact
It is undisputed that the layer house facility will produce odor and dust. However, the ISE facility
is a modern state-of-the-art facility that will produce only a minimal degree of dust and odor.
Further, the extent of the dust and odor that will be produced has not been quantified, and the
distance at which the odor or dust will be perceived has not been established. As to distance, the
evidence shows that neighboring property owners are at distances of from 1,075 feet to 2,050 feet
and those families enjoy gardening, swimming, cooking out, and other general outdoor recreation.
Additionally, the area in which ISE will operate is one well acquainted with typical odors and
particles associated with a farming community. As stated previously, the diversity of agricultural
uses includes pasture land, tree farming, hog facilities, chicken facilities, beef cattle and dairy cows.
In particular as to chicken and egg production, in 1980 approximately one million chickens were in
the area, and currently, approximately 300,000 chickens are present. The ISE property itself has
been previously utilized for dairy farms, a beef cattle farm, and hog farms.
b. Conclusions of Law
For three reasons the law of nuisance does not deny the permit here under review. First, the evidence
does not establish that granting the permit will create a public health nuisance. Second, as to the law
of nuisance in general, the General Assembly has established a preference for agricultural activities
such as the ISE project and a corresponding disfavor for holding such projects to be a forbidden
nuisance. Finally, the Town's argument seeks to outlaw a future nuisance without the necessary
evidence to support such an action.
First, DHEC has responsibilities to prevent public health nuisances and is authorized to establish
regulations "for the purpose of suppressing nuisances dangerous to the public health. . . ." S.C. Code
Ann. § 44-1-140 (1976). DHEC has issued regulations addressing public health nuisances in broad
language. For example, the regulation states "[a]ny business serving the public or any industry [and]
[a]ny such building, business, or industry shall at all times be properly ventilated, free from dust,
vapors, and gases that might be detrimental to the public health; and free from obnoxious odors that
are objectionable to the esthetic senses." S.C. Code Ann. Regs. 61-54. Accordingly, DHEC must
consider the dust potential to decide if granting the permit will create dust "detrimental to the public
health" and consider the odor potential to decide if granting the permit will result in "obnoxious
odors that are objectionable to the esthetic senses."
In deciding whether the dust or the odor are of a degree sufficient to constitute a public health
nuisance, the regulation must be read to impose a reasonable threshold test rather than a test of "any"
dust or odor. If the standard imposed by the regulation were read to literally require the industry to
be "free" of dust or "free" of any obnoxious odor then numerous industries dealing with material
emitting dust or unpleasant odors would be forbidden public health nuisances, e.g., the dust of a
grain milling activity or the odor of paper manufacturing. Obviously, the regulation seeks to prohibit
those circumstances in which the dust or odor exceed a level which creates a public health nuisance.
Since the test requires a minimum threshold, at what level is the threshold set? The answer is again
the necessary one of "it depends." In other words the totality of the circumstances must be
considered to decide whether the dust or odor of a particular operation creates a public health
nuisance.
In considering the total circumstances related to public health nuisances, the actions of the agency
will not be interfered with where there is no showing that the agency acted arbitrarily. 39A C.J.S. Health & Environment § 40 (1976). Indeed, a refusal to issue a permit for a facility may be an
arbitrary decision where the facts show neighboring properties operate farms and the area already
contains a significant number of the animals that are the subject of the permit. See Lichtman v.
Board of Health of Deptford Township, 26 A.2d 503 (N.J. 1942) (decision denying swine permit
reversed as arbitrary since adjoining properties operated piggeries and 85,000 pigs already in the
township).
Here, DHEC has not acted arbitrarily in finding no public health nuisance. Rather, the area is already
populated by numerous animal farming operations that exist with typical odors and particles
associated with agricultural activities. Further, the area houses at least 300,000 birds and numerous
livestock operations of both beef cattle and dairy cows. Finally, the layer houses are state-of-the-art
facilities that minimize dust and odor to a degree making them compatible with the surrounding area.
Accordingly, the dust will not be detrimental to the public health and the extent of the odor will not
be so objectionable as to require denying the permit. DHEC has not been arbitrary in its review of
ISE's application and properly concluded no reason exists to deny the permit on the grounds that a
public health nuisance would be created by granting the permit.
Second, no basis exists for finding a nuisance will be created by issuing the permit. The General
Assembly has established a preference for allowing the specific agricultural activities represented
by the ISE project and has established a corresponding disfavor for holding such a project to be a
forbidden nuisance. Specific legislation explains that "[t]he policy of the State is to conserve,
protect, and encourage the development and improvement of its agricultural land and facilities for
the production of food and other agricultural products [and these laws are] enacted to reduce the loss
to the State of its agricultural resources by limiting the circumstances under which agricultural
facilities and operations may be considered a nuisance [and] [t]he purpose of [these laws] is to lessen
the loss of farmland caused by common law nuisance actions. . . ." S.C. Code Ann. § 46-45-10
(Supp. 1997). The disfavor of nuisance actions specifically covers raising, feeding, and keeping
chickens as well as the production, processing or packing of eggs. S.C. Code Ann. § 46-45-20(B)(4)
and (6) (Supp. 1997). Accordingly, nuisance is not a ground for denying the permit.
Third, the statutory scheme contemplates that a nuisance from an agricultural facility must be actual
rather than potential. For example, the General Assembly balanced the policy disfavoring nuisances
by holding that an agricultural facility can create a nuisance due to "negligent, improper, or illegal
operation." S.C. Code Ann. § 46-45-30 (Supp. 1997). "Negligent, improper, or illegal operation"
requires either actual performance or establishing with virtual certainty that the operation will be
improper. In the same fashion, if an "odor problem" comes to the attention of DHEC such that the
odor interferes with the "health or welfare of the people" or the "enjoyment of life or use of affected
property," DHEC itself can require that the odor be reduced to proper levels. S.C. Code Ann. § 47-20-70 (Supp. 1997). Again, the "odor problem" must be determined from the actual performance
or a means of establishing with virtual certainty that the facility will produce an odor problem.
Thus, the statutory scheme does not contemplate denying ISE the right to use its property where the
basis of the denial is that the use "might" become a nuisance. Rather, an actual nuisance is
contemplated. In this case, the facts, at best, present only a possibility for inappropriate discharge
of dust and odor and even then the discharge has not been persuasively quantified nor qualified as
to the density of discharge or the strength of the odor at identifiable distances. Accordingly, DHEC
properly declined to deny the permit on nuisance grounds.
IV. ORDER
Based upon the facts and law as established in this decision, DHEC is ordered to grant Construction
Permit # 18,269-AG and NPDES permit #SC0047686 to ISE.
IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
May 29, 1998
Columbia, South Carolina
1. Contested case jurisdiction is in the Administrative Law Judge Division pursuant to S.C.
Code Ann. § 1-23-600(B) (Supp. 1997) and S.C. Code Regs. 61-72 § 201.
2. Regulations have been proposed that will address agricultural animal facilities such as
that proposed by ISE. See Proposed New Regulation 61-33, State Register, September 21, 1997.
Those regulations are as yet unapproved.
3. To underscore the importance of obtaining prior approval through the permitting process,
certain acts are unlawful without a permit. For example, 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. Sec. 48-1-110(a)(1) (Supp. 1997).
Additionally, 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. Sec. 48-1-90(a) (1987).
4. I recognize that two of my fellow judges have reached the opposite conclusion. See Haley Farms v. DHEC, 97-ALJ-07-198-CC, May 4, 1998, and Edgemoor Community Action
Association v. DHEC, 95-ALJ-07-0728-CC, November 19, 1996. After due consideration to the
views expressed in those decisions, I respectfully disagree. |
