SC Administrative Law Court Decisions

This matter comes before me upon a request for a contested case hearing filed by the Petitioners seeking review of the decision of the South Carolina Department of Health and Environmental Control ("DHEC") to grant Construction Permit #18,304-AG to Tim Schultz d/b/a Schultz Turkey Facility for construction of a waste treatment/collection system for a turkey facility in York County, South Carolina. After notice to the parties, a hearing was conducted on October 7, 8, and 9, 1997, in Chester, South Carolina, pursuant to S.C. Code Ann. §§ 1-23-310 and 1-23-600(B) (Supp. 1997). Based upon the testimony and evidence presented in this case, the permit is granted. Any issues raised or presented during the proceeding of this matter that are not specifically addressed in this Order are deemed denied. ALJD Rule 29(C) (April 29, 1998).

The Petitioners have presented the following issues for determination:

1. Whether, in the absence of duly promulgated regulations, DHEC properly utilized "guidelines" to issue the Permit to Construct a waste treatment/collection system for Mr. Schultz's turkey facility;

2. Whether the Permit to Construct the waste treatment/collection system for Mr. Schultz's turkey facility was properly applied for and issued by DHEC in compliance with applicable law; and

3. Whether the Permit conditions, particularly the land application of waste from the facility, are protective of the public health and the environment in compliance with the South Carolina Pollution Control Act.

DHEC has general responsibility for matters involving human health and environmental protection, including the handling and disposal of animal wastes, pursuant to the South Carolina Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 and Supp. 1997). Persons are required to obtain approval of plans for waste disposal systems and to acquire a permit for the installation or operation of disposal systems. S.C. Code Ann. § 48-1-50(10) (1987). In the present case, Mr. Schultz's turkey houses will produce a substantial amount of waste in the form of manure and dead turkeys. Therefore, Mr. Schultz is required to obtain approval from DHEC of his plans for a waste disposal system and acquire a permit for the installation or operation of the waste disposal system because this waste will be discharged into the environment. See the South Carolina Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 and Supp. 1997), specifically §§ 48-1-50, 48-1-90 and 48-1-100(B) and (C). Pursuant to the Pollution Control Act, any discharge of waste must be consistent with reasonable standards of purity of air and water resources of the State. S.C. Code Ann. § 48-1-20; cf. South Carolina Dep't of Health and Envtl. Control v. Armstrong, 293 S.C. 209, 359 S.E.2d 302 (Ct. App. 1987). The installation or operation of the waste disposal system is subject to the conditions set forth in the permit. S.C. Code Ann. §§ 48-1-50(5) and 48-1-90(a) (1987).

The Petitioners question whether Schultz properly complied with all requirements of the "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control," dated December 1, 1994 ("Guidelines") in applying for the Permit for his turkey facility. As a related issue, the Petitioners also question whether DHEC reviewed and issued the permit in accordance with criteria set forth in the Guidelines. As stated above, the Pollution Control Act serves as the controlling statutory authority. However, the Pollution Control Act contains no specific standards for the construction of a waste treatment/collection system for a turkey facility. No statutory or regulatory criteria exist for determining the conditions for granting permits for the construction of waste treatment/collection systems for turkey facilities.⁽¹⁾ Where a statute provides controlling principles, an administrative agency may exercise a large measure of discretion within those principles. 1 Am. Jur. 2d Administrative Law § 118 (1962). Therefore, provided the construction and operation of Mr. Schultz's turkey houses do not pose a threat to the environment or the health and welfare of the citizens of the State, the facility would not be precluded under the Pollution Control Act. In fact, the permit must be issued if it is not in contravention of the Pollution Control Act. S.C. Code Ann. § 48-1-100(A).

An agency decision is required to be reached utilizing reasoned judgment, be based upon adequate determining principles and a rational basis, and governed by fixed rules or standards to avoid being arbitrary. Deese v. State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1994). Criteria for permitting are not required to be so specific as to be all inclusive in setting forth factors to be considered; however, factors must not be arbitrarily limited by unwritten internal agency policy. See Home Health Serv., Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); see also Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).

DHEC, based upon its permitting and enforcement experience, considers relevant factors related to the construction and operation of proposed facilities and their impact upon the citizens and environment of the State. These factors are stated in the Guidelines, which provide a framework for the permitting process covering, among other things, site selection, waste management, manure storage and handling, dead animal disposal, potential nuisances caused by odors and vectors such as flies, and operation and maintenance of the facility. For site selection, DHEC considers in part: the topography of the site; the distance to neighboring residences and institutions; cover crops and trees in the area; prevailing wind directions; and the distance to any drinking water wells, rivers, tributaries, or other water bodies.

Since the DHEC agricultural guidelines are not promulgated regulations, they do not have the force and effect of law, and are not legally binding. See Home Health Serv., Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); see also Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369 (11th Cir. 1983); American Bus Ass'n v. United States 627 F.2d 525, 529 (D.C. Cir. 1980). As a result, the decision to approve or deny a permit application must be based upon the individual merits of each application. This tribunal must consider all factors and evidence relevant to granting an agricultural facility permit. Moreover, DHEC's guidelines are not an exhaustive collection of permit criteria. Rather, all reasonable factors not inconsistent with the controlling principles of the applicable statutory provisions should be considered as evaluative criteria.

The DHEC Division of Water Pollution Control reviewed the application under the S.C. Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 & Supp. 1996), as implemented through the Guidelines, which are published and made available to the public. The DHEC staff utilized these written guidelines in determining whether and with what restrictions to issue the permit to Schultz.

Based upon the Guidelines, DHEC granted the permit but imposed extensive as well as comprehensive restrictions:

Condition 1: Schultz must notify the DHEC Catawba District office when construction is complete and the plan is ready to be implemented.

Condition 2: Schultz must obtain prior approval from the Catawba District if any manure or litter is to be land-applied on weekends.

Condition 3: Schultz must dispose of all medical wastes according to DHEC regulations.

Condition 4: Schultz 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. This condition is designed to prevent erosion and thus prevent any pollutant discharge into the ground from the barn.

Condition 5: Schultz must operate and maintain the waste system in accordance with the Waste Management Plan. A violation of the Plan is a violation of the permit.

Condition 6: Schultz 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.

Condition 7: On cropland, manure must be disked in within 24 hours of application.

Condition 8: Schultz must apply the waste only when weather and soil conditions are favorable and prevailing winds are blowing away from nearby opposite dwellings. Waste with fly larvae and pupae must be disked into the ground immediately or treated with a fly control method.

Condition 9: Schultz must allow a minimum 4-week recovery period between applications of waste. Sufficient acreage must be available to rotate applications.

Condition 10: Schultz 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.

Condition 11: Schultz must promptly repair leaking waterers inside the barns and practice good sanitation to reduce fly problems and prevent runoff from inside the houses. Further, wet manure must be removed and immediately disposed of by land application and disking into the soil. Any spillage during transportation must be cleaned up immediately.

Condition 12: Schultz must keep specific information at his facility for DHEC's review and inspections by the Catawba District personnel. The Waste Management Plan requires a soil test on all areas where manure has been applied annually. Schultz 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 so, then the Plan must be amended to reflect what is actually occurring at the site. Schultz is required to identify the fields used for manure application. Schultz must record the dates of land application of the waste, keep records of the mortality rate of his turkeys, and record where and how the dead turkeys are disposed.

Condition 13: Schultz must use all sanitary precautions in collecting, storing, transporting, and spreading wastes.

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 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. Soil should cover the edges of the plastic to help secure it.

Condition 15: Waste must be covered during transport.

Condition 16: Schultz 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.

Condition 17: Schultz 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: Schultz must operate and maintain the facility so as to avoid discharges into the environment that are contrary to the Waste Management Plan, and if Schultz abandons the facility, DHEC must be notified immediately.

Condition 19: If Schultz 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.

Condition 20: At all times Schultz must maintain an all-weather access road to the facility.

Condition 21: Consistent with condition # 1, Schultz must secure a permit to operate prior to placing the facility into operation.

Mr. Schultz's application was in accordance with appropriate permitting criteria and evaluated and issued by DHEC in accordance with all relevant criteria in a reasonable manner consistent with other applications.

The Petitioners object to the issuance of the Permit on a number of grounds. The Petitioners allege that Permit conditions regarding the land application of waste from Mr. Schultz's turkey facility cannot or will not prevent contamination of the groundwater and drinking water supplies near the facility or near the land application sites. The Petitioners also claim that operation of the turkey houses will result in a fly problem in the area, and will emit such an offensive odor so as to create a nuisance to St. Paul Baptist Church and the surrounding residences. Petitioners fear that the operation of another agricultural facility in the region will exacerbate existing fly and odor problems.

Mr. Schultz's facility is located in a rural, agricultural area largely devoted to farming and livestock. In the evidence of this case, no persuasive testimony demonstrates a health danger to the residents of the area due to the construction and operation of a waste treatment system and utilization of litter from the proposed facility. No evidence demonstrates a causal connection between persons with asthma or bronchial problems and turkey brooder houses. Further, the concerns about odor, dust, and flies are all subject to sufficient and extensive limitations in the permit granted by DHEC.

Accordingly, the creation of an unhealthy environment does not serve as a valid basis for denying the permit request. This tribunal is satisfied that the proposed facility will not be harmful to the environment or the neighbors.

A. Water Pollution Concerns

The Petitioners allege that operation of the facility and the land application of waste generated by Mr. Schultz's turkey facility will contaminate groundwater and drinking water supplies. Although the Petitioners assert the turkey houses and the spreading of litter will result in the contamination of drinking water from wells in the area, Petitioners have not produced any evidence to demonstrate that the facility should not be permitted because it will result in water pollution. The testimony demonstrated that the operation is a dry litter disposal system for which there is no risk of water pollution. The proposed facility will not have a waste disposal system or a lagoon located on-site. Likewise, the turkey houses would be located far away from wells. The evidence presented by the witnesses at the hearing, including the Petitioners' expert witness, further demonstrated that there is essentially no risk of water pollution or contamination of drinking water wells to the Petitioners from the operation of the turkey facility itself.

As designed, the facility features a "no-discharge" waste system which will land-apply dry waste from the turkey houses onto distant fields as fertilizer. Waste from the facility will not be applied in the vicinity of the facility or the Petitioners. The litter will be applied to fields as fertilizer in a manner and at a distance so as not to contact sources of well water. The waste management plan (Plan), which was prepared for this facility by the U. S. Department of Agriculture Natural Resources Conservation Service ("NRCS"), identified approximately 427 acres for possible land application of the waste. This waste will be applied on farms located several miles from the facility and the Petitioners. The maps in the Plan clearly indicate that the farms where the manure will be spread are surrounded by other agricultural property and beyond 200 feet of any dwelling. Guidelines utilized by DHEC do not require notice to neighboring residents that manure will be spread on adjoining properties. The evidence demonstrated that, based upon the calculations included in the waste management plan, sufficient acreage existed for land application at these fields. Accordingly, the facility and its utilization of the waste would not result in the contamination of well water.

The Special Conditions in the Permit are imposed to alleviate water pollution concerns. The Plan, which is incorporated into the Permit, also includes factors for the operation and maintenance of the waste management system regarding land application of the waste. Condition Ten of the Permit restates the Plan procedures for applying waste. It also incorporates the prohibition of applying waste within 100 feet of watercourses; requires the farmer to immediately spread and incorporate the manure on any floodplain areas after the danger of major runoff is past; requires the farmer to use lower rates of application on shallow soils to avoid groundwater contamination; and provides that on slopes over 300 feet long, terraces or surface drains should be installed to slow the movement of waste over land. The purpose of this Condition is to avoid the potential for groundwater or surface water contamination.

Petitioners have presented no reliable, probative evidence that groundwater or surface water contamination will occur as a result of waste disposal from the proposed turkey operation, nor is there any evidence to support a finding that the operation of the turkey facility will result in any degradation of the Petitioners' drinking water wells.

B. Flies and Odor Concerns

The Petitioners also allege that operation of the turkey facility will result in nuisances from flies and odors. Landowners in the vicinity of the proposed facility have complained about current problems with excessive files. Upon investigation, DHEC attributed the problem to a facility operated by Gary Watson located within a few miles of the proposed facility. One of Petitioners' witnesses, who lives directly across from the Watson facility, has been experiencing a severe problem with flies. The other Petitioners who live closer to Schultz' proposed facility are experiencing some flies but their complaints are primarily odors from the Watson facility. They live about one-fourth to one-half mile north of Watson's location. The prevailing southwesterly winds blow odors from this facility toward the Petitioners. Another facility, owned by Ronnie Parker and managed by Schultz, is located within a few miles north of the proposed facility and the Petitioners. The wind blows the odors away from the Petitioners. The Parker facility has not created any problem for or complaints from the residents.

The Special Conditions contained in the Permit give protection to adjoining landowners from nuisances that may result from the turkey operation. Several special conditions in the Permit are included specifically to prevent fly and odor nuisance from occurring and require immediate abatement of any nuisance created. Condition 11 requires Schultz to practice good sanitation in the turkey houses by removing and immediately disking into the soil any wet manure to prevent potential fly and odor problems. Condition 14 contains provisions for avoiding fly and odor problems by requiring that waste stockpiled on site for more than three days be placed on a concrete pad or other acceptable means and covered with black plastic to prevent fly breeding. Moreover, Condition 17 requires Schultz to abate any complaints resulting from flies and odors within a time frame designated by DHEC.

The evidence shows that Schultz's turkey houses are located in an area where prevailing southwesterly winds will carry any naturally occurring odors in a northeasterly direction, away from the Petitioners, and into a wooded area on the property behind the turkey facility. In addition, a line of trees existing on the site will act as a natural buffer to block and divert winds carrying odors above and away from neighboring residences and the Church.

Regarding the Petitioners' evidence as to the possible occurrence of odor nuisance toward the Church created by the air drainage phenomenon, the evidence demonstrates that the existing tree buffer between the proposed facility and the Church would provide relief from air drainage; that air drainage could be further reduced by the planting of additional trees along the property line of the proposed facility; and that air drainage is primarily an event which occurs at night during the summer, while most of the Church's night activities occur indoors. Schultz intends to construct the houses so that the prevailing winds will blow across the houses carrying any odors away from any homes and the church.

The evidence further demonstrates that DHEC responds promptly to complaints regarding fly and odor problems from agricultural facilities, and can require immediate action by Schultz to correct any potential problems. The testimony of the DHEC witnesses demonstrate that complaints to DHEC about nuisances created by the facility could result in administrative sanctions or even revocation of Schultz's permit. The testimony additionally demonstrated that Schultz is an experienced turkey farmer who intends to devote all of his time and efforts to management of this turkey operation. The evidence shows that proper management of the facility is a primary factor in prevention and reduction of odors and flies from a turkey operation. Mr. Schultz testified that he is aware of the Permit Conditions governing operation and maintenance of his facility, and intends to abide by those Conditions. The testimony of the DHEC witnesses and the Petitioners' expert witness demonstrate that proper operation and management of the facility are significant factors in preventing and decreasing any nuisance from flies and odors from the facility. See C.L. Barth, L.F. Elliott, S.W. Melvin, Using Odor Control Technology to Support Animal Agriculture, ASAE Paper No. 82-4035 (June 1983) and Control of Manure Odors ASAE Engineering Practice: ASAE EP379.1, ASAE Standards (1994). Some of the techniques for managing odor control in animal enterprises contained in these treatises are contained in the permit issued by DHEC as special conditions.

This tribunal is satisfied, based upon the evidence presented, that the proposed facility will not be harmful to the environment or the nearby neighbors. Since Petitioners' contentions center around the potential interference with the use and enjoyment of their property from offensive odors and flies which may emanate from Mr. Schultz's turkey facility, rather than the imposition of a threat the their health, circuit court may be the appropriate forum for relief.

1. On May 7, 1997, Tim Schultz filed with DHEC an application for a permit to construct a Waste Treatment/Collection System and a Waste Management Plan for a turkey facility.

2. The proposed turkey facility will consist of two brooder houses and three growout houses with packed clay floors topped by wood shavings and sawdust that will house approximately 42,000 turkeys per flock at 5.5 flocks per year.

3. The proposed turkey facility will be located in a rural area of York County.

4. The general area of the proposed turkey operation is an agricultural area. Local zoning and land use requirements do not prohibit the turkey brooding facility.

5. The site was inspected by Mr. Joe Faris of DHEC's Catawba Environmental Quality Control Office, and preliminary site approval was granted on March 31, 1997.

6. The selection of the site met the "Site Selection Criteria" contained in DHEC publication, "Agricultural Facility Permitting Requirements of the Bureau of Water Pollution Control," dated December 1, 1994.

7. The Natural Resources Conservation Service of the U.S. Department of Agriculture (NRCS), based upon the application and information provided by tax maps showing the location of the proposed turkey facility, nearby neighbors, and the farms where the waste would be land applied, in addition to soil maps utilized by the NCRS, prepared a waste management plan, dated May 6, 1997, for Mr. Schultz's facility.

8. The NRCS Waste Management Plan (Plan) was incorporated into the permit application.

9. The Plan met the guidelines established by DHEC.

10. The site is on a rise with a creek located at the back or north of the property. The siting indicated in the Plan is within 300 feet of Cameron Road, which fronts the property. It is within fifty feet of the estimated property line of the property to be retained by the owners. The site is approximately 350 feet from the property line of St. Paul's Baptist Church and within 800 feet of the Church building itself. It is within 600 feet of the two houses located across Cameron Road.

11. All adjacent property owners whose property lines fall within 1,000 feet of the proposed facility were sent letters notifying them of the proposed construction of Schultz's turkey facility. No notice was provided to landowners within 1,000 feet of the proposed sites for land application of the waste.

12. The DHEC Bureau of Water deemed the application complete and reviewed the application and waste management plan pursuant to the South Carolina Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (1987 and Supp. 1996), and the informal Guidelines.

13. Petitioners, who own land or reside in the vicinity of the proposed site, filed objections to the proposed construction permit with DHEC.

14. On June 23, 1997, following review of the application and waste management plan and after consideration of Petitioners' objections, DHEC issued State Construction Permit #18, 304-AG to Mr. Schultz in accordance with the waste management plan prepared by NRCS, subject to twenty-one Special Conditions imposed by DHEC and incorporated into the proposed permit.

15. Persons who had previously given notice to DHEC of their objections to the proposed facility were given notice by certified mail of DHEC's decision to issue the Permit and were advised of their right to request a contested case hearing. Accordingly, Petitioners filed a request for a contested case hearing.

16. The turkeys will be raised completely within enclosed houses on sawdust and wood shavings, producing dry litter.

17. The turkeys will be brought into the brooder houses as days-old poults and raised to a weight of about six pounds in six to eight weeks. At that time, the turkeys and the litter from the brooder houses will be divided and moved into the three growout houses where the turkeys will be raised until they reach a weight of approximately 15.5 pounds at approximately 18 weeks of age.

18. The proposed operation will produce waste in the form of dry litter consisting of turkey manure, sawdust and wood shavings, and dead turkeys. This dry litter produces no significant risk of water pollution.

19. The proposed operation will produce approximately 1,260 tons of waste annually.

20. The litter will be removed from the growout houses once each year.

21. In accordance with the Permit's waste management plan, litter removed from a growout house must be either immediately land-applied as fertilizer or stored on site for future land application.

22. The waste management plan developed for Schultz by the NRCS provides for land application of the animal wastes.

23. The Plan analyzed the total acreage available for disposing of the liter.

24. The Plan identified potential fields for land application of the waste.

25. No land application of waste will occur on the site of the proposed facility.

26. The waste management plan requires the use of 427 acres of hay land and pasture land for land application of the litter from the proposed turkey facility.

27. Schultz does not own any of the acreage to be used for disposal of the litter but has leases or permission to spread the litter on such land.

28. Mr. Schultz has the use of adequate acreage for land application of the 1,260 tons of waste to be produced annually by his turkey facility. The property identified for land application in the waste management plan can accommodate 1,329 tons of manure per year using the optimum application rates.

29. The land to be used for application of the litter is not within 100 feet of any waterway, wells, streams, springs, or ponds. It is also not within 200 feet of any dwellings.

30. The prevailing winds travel from a southwesterly direction.

31. The closest Petitioners reside approximately 500 to 600 feet south of the closest brooder house on the proposed turkey facility. The facility is located downwind from the Petitioners.

32. Linda Lewis resides across the street from the proposed facility and the Church.

33. Lewis and members of her family suffer from asthmatic conditions that may require the use of an inhaler as well as sinus conditions.

34. They participate in outdoor activities such as cutting the grass, planting flowers, playing with their dogs and grandchildren.

35. Nancy Love Taylor and her family (including parents and siblings) live across the street and within sight of the proposed facility. Taylor suffers from bronchitis.

36. St. Paul Baptist Church is located approximately 800 feet from the footprint of the closest brooder house and approximately 1,600 feet east-southeast from the footprint of the closest growout house at the proposed facility.

37. The Petitioners have been experiencing odors and flies from the operation of the Watson facility. Petitioners are located downwind from the facility such that the odors and flies travel towards them.

38. During the site evaluation, waste management plan review, and application consideration process, DHEC utilized internally formulated interpretive guidelines which address site selection, waste management, manure storage and handling, dead animal disposal, water pollution control, nuisances caused by odors and vectors such as flies, and operation and maintenance of the facility.

39. The location of Mr. Schultz's proposed facility was approved by DHEC pursuant to the internally formulated interpretive guidelines based on a totality of factors, including the rural, agricultural community surrounding the proposed turkey facility, distance from neighboring residences and the Church, distance from watercourses and drinking water supplies, the location on relatively flat, adequately drained land, the existence of a natural tree buffer on site, and the prevailing southwesterly wind direction which would direct any odors from the facility away from Petitioners' residences, and would largely preclude any odor transport toward the Church.

40. Based upon the above factors, DHEC incorporated twenty-one Special Conditions into the Permit designed to protect the public health and environment and to ensure proper operation and maintenance of the facility.

41. The Permit Conditions provide adequate measures to control the operation and maintenance of the facility.

42. The Permit Conditions provide adequate measures to control the times and manner for land-applying the waste generated by the turkey facility.

43. The Permit Conditions provide adequate measures for maintaining records required to be kept by the operation for monitoring by DHEC.

44. The Permit Conditions provide adequate measures to protect the groundwater and drinking water supplies by setting forth requirements for storage and land application of the manure.

45. The Permit Conditions provide adequate measures to control future changes in the operation of the facility.

46. The Permit Conditions provide measures to control, minimize and to abate potential nuisances from flies, pests, and odor.

47. The proposed facility is a dry litter disposal system which presents no risk of water pollution to well water utilized as drinking water by the Petitioners.

48. DHEC routinely inspects agricultural facilities to ensure compliance with permits and waste management plans.

49. DHEC has the authority to inspect agricultural facilities in response to complaints and to require immediate abatement of nuisance conditions.

50. DHEC has the authority to enforce compliance with Mr. Schultz's permit and waste management plan, including the imposition of administrative sanctions and modification or revocation of the permit.

51. A permit to operate the facility must be secured by Mr. Schultz within ninety (90)

days of the completion of construction of the system.

52. The permit to operate will include the same terms and conditions as the Construction Permit.

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

1. The Administrative Law Judge Division has jurisdiction over the issuance of environmental permits pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 1996).

2. The standard of proof in weighing the evidence and making a decision on the merits of a contested case hearing is a preponderance of the evidence. National Health Corp. v. South Carolina Dep't. of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

3. DHEC has general responsibility over matters relating to the health of the people of the State, including the handling and disposal of animal wastes. S.C. Code Ann. § 48-1-100 (Supp. 1996).

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

5. 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).

6. It is unlawful to construct or install a waste disposal system prior to approval of a waste plan and issuance of a permit by DHEC. S.C. Code Ann. § 48-1-110(a)(1) (Supp. 1996).

7. The discharge of animal wastes into the environment may only be done in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90(a) (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 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. 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 (1987).

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 issuance of construction permits for agricultural facilities is governed by the South Carolina Pollution Control Act, codified at S.C. Code Ann. §§ 48-1-10 et seq. (1987 and Supp. 1996). Under the Pollution Control Act, it is unlawful for any person to discharge wastes into the environment of this State except as in compliance with a permit issued by DHEC. S.C. Code Ann. § 48-1-90 (1987).

13. The Pollution Control Act requires that a permit be acquired before disposing of the waste generated by the facility. S.C. Code Ann. § 48-1-100(A) (Supp. 1996).

14. S.C. Code Ann. § 48-1-100 (Supp. 1996) provides in part:

A person affected by the provisions of this chapter or the rules and regulations adopted by the department desiring to make a new outlet or source, for the discharge of sewage, industrial waste or other wastes, or the effluent therefrom, or air contaminants into the waters or ambient air of the State, first shall make an application to the Department for a permit to construct and a permit to discharge from the outlet or source. If after appropriate public comment procedures, as defined by department regulations, the department finds that the discharge from the proposed outlet or source will not be in contravention of provisions of this chapter, a permit to construct and a permit to discharge must be issued to the applicant.

15. S.C. Code Ann. § 48-1-30 (1987) authorizes the promulgation of regulations to implement the Pollution Control Act and to govern DHEC's procedure with respect to meetings, hearings, filing of reports, the issuance of permits and all other matters relating to procedure. As of this date, no regulations detailing guidelines and procedures for agricultural facility permitting and the waste disposal systems for those facilities have been adopted by the General Assembly.

16. No stated criteria or definition exist in a statute or regulation setting forth the specific factors to be considered in determining the conditions under which a permit for construction of a waste treatment/collection system for a turkey facility may or must be granted.

17. 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. Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991); City of Rock Hill v. S. C. Dept. of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327 (1990); Carolina Water Serv., Inc. v. South Carolina Pub. Serv. Comm'n, 272 S.C. 81, 248 S.E.2d 924 (1978).

18. Where a statute provides controlling principles, an administrative agency may exercise a large measure of discretion within those principles. 1 Am. Jur. 2d Administrative Law § 118 (1962).

19. DHEC's powers are construed liberally when the powers concern the protection of the health and welfare of the public. City of Rock Hill v. S. C. Dept. of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327 (1990); City of Columbia v. Bd. of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).

20. An agency decision must be reached utilizing reasoned judgment and be based upon adequate determining principles and a rational basis. City of Columbia v. Board of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).

21. Criteria for permitting is not required to be so specific as to be all inclusive in setting forth factors to be considered; however, factors must not be arbitrarily limited by unwritten internal agency policy. See Home Health Services, Inc. v. S.C. Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); see also Captain's Quarters Motor Inn, Inc. v. S. C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).

22. DHEC's agricultural guidelines for the issuance of agricultural facility permits are not promulgated regulations and, therefore, do not have the force and effect of law. See Home Health Serv. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994).

23. DHEC's consideration of the evaluative criteria contained in its guidelines for agricultural permit applications is reasonable in the absence of any specific regulations on the subject, so long as the guidelines are not in contravention of or beyond the authority granted by the Pollution Control Act and are not used as an inflexible binding norm, eliminating agency discretion. American Bus Ass'n v. United States, 627 F.2d at 529.

24. The informal guidelines utilized by DHEC are reasonable and were fairly applied in the application review process for Mr. Schultz's permit application.

25. Because no specific regulation governs the boundaries and requirements of a permit applicable to this particular situation, and because the DHEC guidelines do not have the force and effect of law, this tribunal must consider all relevant evidence and material in deciding whether to grant an agricultural facility permit, including but not limited to the factors and criteria contained in the DHEC guidelines.

26. The determination to approve or deny a permit application must be based upon the individual merits of each application. All reasonable factors not inconsistent with the controlling principles of the applicable statutory provisions should be considered as evaluative criteria.

27. The following factors were considered by DHEC in site selection for this facility: the rural, agricultural community surrounding the facility; the topography of the site; distance to neighboring residences and institutions; the existence of buffers such as trees around the site; prevailing wind directions; and the distances to watercourses and drinking water wells.

28. DHEC placed twenty-one Special Conditions in Schultz's Permit which require, among other things, additional controls to avoid nuisances and proper operation and maintenance of the waste management system to prevent discharges into the environment. Some of the other conditions are as follows: (1) manure cannot be stored on-site prior to land application for more than three days unless the manure is stockpiled on a concrete pad or other acceptable means and covered by black plastic; (2) manure should be land-applied only when weather and soil conditions are favorable and when prevailing winds are blowing from nearby opposite dwellings; (3) good sanitation should be practiced and leaking waters should be repaired to reduce fly problems; (4) wastes wet enough to cause fly or other problems will be removed from the houses; (5) dead turkeys must be disposed of by pit burial unless otherwise specified; (6) cleanup of any spillage occurring during transport of the waste; (7) during land application, waste cannot be applied within 100 feet of watercourses, must be immediately spread and incorporated into floodplain areas after the danger of major runoff is past; (8) lower rates of application must be used on shallow soils to avoid groundwater contamination and terraces or surface drains should be installed on slopes over 300 feet long to slow the movement of waste over land; and waste land-applied to cropland is to be disked in immediately. If in the future Petitioners are harmed by the operation of the facility, adequate remedies are available in the courts of this State.

29. Petitioners have failed to show by a preponderance of the evidence that State Construction Permit #18,304-AG should not be issued. The permit was properly applied for by Mr. Schultz and properly reviewed by DHEC under all appropriate statutes and guidelines.

30. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied pursuant to the Rules of Procedure for the Administrative Law Judge Division, Rule 29(B).

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

ORDERED that the South Carolina Department of Health and Environmental Control shall issue State Construction Permit # 18,304-AG to Tim Schultz d/b/a Schultz Turkey Facility as written, for construction of a waste treatment/collection system for a turkey facility.

AND IT IS SO ORDERED.

________________________________

ALISON RENEE LEE

Administrative Law Judge

August 19, 1998

Columbia, South Carolina.

1. Since the hearing of this matter, DHEC has promulgated Regulation 61-43, Standards for Permitting of Agricultural Animal Facilities, effective June 26, 1998.