SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before me upon the request of Petitioners for a contested case hearing to challenge the decision of the South Carolina Department of Health and Environmental Control (DHEC) to grant Construction Permit #18,442-AG to Respondent Raymond E. Wells for construction of four broiler houses in Clarendon County. After notice to the parties, a hearing was conducted on June 7, 1999 at the Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. §§ 1-23-310 and 1-23-600(B) (Supp. 1998). 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).

ISSUES PRESENTED

Petitioners presented the following issues for adjudication:

1. Whether the permit was properly issued pursuant to the applicable statutory and regulatory laws?

2. Whether Respondent's construction and utilization of the broiler houses would negatively affect the surrounding community by creating nuisances from flies, dust, and odor detrimental to the health of the residents?

DISCUSSION

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. (Rev. 1987 and Supp. 1998). 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) (Rev. 1987). In the present case, Respondent's chicken houses will produce a substantial amount of waste in the form of manure and dead chickens. Because this waste will be discharged into the environment, Respondent is required to obtain approval from DHEC on his plans for a waste disposal system and acquire a permit for the installation and operation of the waste disposal system. See South Carolina Pollution Control Act, S.C. Code Ann. §§ 48-1-10 et seq. (Rev. 1987 and Supp. 1998), 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; see also, South Carolina Dep't of Health and Envtl. Control v. Armstrong, 293 S.C. 209, 359 S.E.2d 302 (Ct. App. 1987). Thus, the installation and operation of Respondent's waste disposal system are subject to the conditions set forth in the permit. S.C. Code Ann. §§ 48-1-50(5) and 48-1-90(a) (Rev. 1987).

Petitioners generally question whether Respondent properly complied with all requirements of the applicable statutory and regulatory law in applying for the permit for his chicken broiler facility. As a related issue, Petitioners also contend that the proposed facility will affect the surrounding community by creating nuisances from flies, dust, and odor detrimental to their health. As stated above, the Pollution Control Act serves as the controlling statutory authority. Although the Pollution Control Act contains no specific standards for the construction of a waste treatment/collection system for a chicken broiler facility, DHEC promulgated 24A S.C. Code Ann. Regs. 61-43.200.10 et seq."[t]o protect the environment and the health and welfare of citizens of South Carolina from pollutants generated by the growing or confining of animals, processing of animal waste, and land application of animal waste." 24A S.C. Code Ann. Regs. 61-43.200.10(A)(1).

In applying Regulation 61-43 to the instant case, DHEC considered a number of relevant factors related to the construction and operation of the proposed facility and its impact upon the citizens and environment of the State. These factors 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.

In the instant case, Petitioners did not present any evidence to establish that the issuance of Respondent's permit is contrary to the aforementioned statutory and regulatory authority; neither did Petitioners substantiate that the operation of the proposed facility would pose a health risk. While this tribunal is sensitive to the concerns of the Petitioners, it is constrained by the record and applicable law. In requesting that this tribunal deny Respondent's permit on the evidence proffered, Petitioners are in essence asking this tribunal to effectuate zoning, as Respondent satisfies all of the setback distance requirements. Moreover, the residence of the Petitioner nearest to the proposed facility is approximately 2000 feet away, clearly outside the 200 feet setback requirement. See 24A S.C. Code Ann. Regs. 61-43.200(80)(5) (Supp. 1998). Furthermore, the facility will be located in an area that is traditionally agriculture in nature.

In addition, the regulation does not purport to zone poultry producing facilities, such as Respondent's facility, to certain areas. The regulation establishes "locational" criteria for the protection of the environment and public health. "The location of animal facilities and waste utilization areas as they relate to zoning in an area is not covered in [the] regulation. Local county or municipal governments may have zoning requirements and these regulations neither interfere with nor restrict such zoning requirements." Regs. 61-43.200.10(A)(5). Accordingly, it is beyond the jurisdictional scope of the Administrative Law Judge Division to intervene in local zoning matters or to enjoin a potential future civil nuisance. 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

FINDINGS OF FACT

I make the following findings of fact, considering the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into account the credibility of the witnesses:

1. On December 24, 1998, DHEC issued Construction Permit 18,442-AG to Raymond E. Wells to construct four broiler houses one mile NE of the intersection of SC Highways 262 and 25 in the rural area of Clarendon County.
2. The general area in which the proposed broiler operation will be situated is an agricultural area. In fact, as proposed, the houses will be surrounded by dense woods. Local zoning and land use requirements do not prohibit the broiler houses.
3. The proposed facility is 500 feet from any waters of the State, 2000 feet from ephemeral or intermittent streams, and 4000 feet from a potable well.
4. The Natural Resources Conservation Service of the U.S. Department of Agriculture (NRCS) prepared a waste management plan, which met the guidelines established by DHEC.
5. The NRCS Waste Management Plan (Plan) was incorporated into the permit application.
6. 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. 1998), and 24A S.C. Code Ann. Regs. 61-43.200 et seq. (Supp. 1998).
7. This proposed facility consists of four broiler houses to accommodate 22,000 birds per house, for a maximum of 88,000 birds (281,600 pounds normal weight) at any one time. The broilers will be raised completely within enclosed houses on bedding producing dry litter. The facility is permitted to produce five flocks per year.
8. The proposed operation will produce waste in the form of dry litter consisting of bedding, chicken manure, and dead chickens.
9. The litter will be removed from the grow-out houses after each flock is grown to maturity and spread on designated fields. It is estimated that the facility will produce 537 tons of chicken manure per year. The Plan specifies that 215 acres of land will be required to utilize the 537 tons of manure, based on the agronomic rate with Nitrogen as the limiting nutrient. The Plan identifies 283.9 acres available for the land application of litter and waste from the facility.
10. In accordance with the Plan, litter removed from a grow-out house must be either immediately land-applied as fertilizer or stored on site, with certain restrictions, for future land application.
11. Petitioners, who own land or reside in the vicinity of the proposed site, raised objections to the proposed construction permit with DHEC after the issuance of the permit. The distance to the nearest property line containing a residence of a Petitioner is approximately 2,000 feet. Petitioners cited problems with flies, odor, and dust from existing broiler facilities situated in the area as justification for denial of Respondent's permit. Further, all Petitioners complained of resultant health problems for themselves or family members from the operation of the existing broiler houses in the area. However, no substantive evidence was proffered to establish a correlation between the health problems Petitioners cited and the operation of these existing facilities. Currently there are twelve broiler houses in the Sugar Hill and Deep Creek communities which comprise the area of concern. Of this number, Respondent operates four broiler houses.
12. DHEC issued State Construction Permit #18,442-AG to Respondent in accordance with the waste management plan prepared by NRCS, subject to twenty-five special conditions imposed by DHEC and incorporated into the proposed permit.
13. The twenty-five special conditions incorporated into the permit are designed to protect the public health and environment and to ensure proper operation and maintenance of the facility. These conditions provide adequate measures to control the operation and maintenance of the facility.
14. The Permit conditions provide adequate measures for maintaining records required to be kept by the operation for monitoring by DHEC.
15. The Permit conditions provide measures to control, minimize and to abate potential nuisances from flies, pests, dust, and odor.
16. DHEC routinely inspects agricultural facilities to ensure compliance with permits and waste management plans.
17. DHEC has the authority to inspect agricultural facilities in response to complaints and to require immediate abatement of nuisance conditions.
18. DHEC has the authority to enforce compliance with Respondent's permit and waste management plan, including the imposition of administrative sanctions and modification or revocation of the permit.
19. The permit to operate the facility will include the same terms and conditions as the Construction Permit.
20. DHEC placed twenty-five special conditions on Respondent's permit which require, among other things, additional controls to avoid nuisances and proper operation and maintenance of the waste management system to prevent harmful 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 chickens must be disposed of by pit burial unless otherwise specified; and (6) cleanup of any spillage occurring during transport of the waste.

CONCLUSIONS OF LAW

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. 1998).
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. Anonymous v. State Bd. of Med. Examiners, 329 S.C. 371, 796 S.E.2d 17 (1998); Nat'l 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. 1998).
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) ) (Rev. 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) (Rev. 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. 1998).
7. 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. (Rev. 1987 and Supp. 1998). 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 (Rev. 1987). Specific authority for the permitting of animal facilities, such as poultry production, is provided in 24A S.C. Code Ann. Regs. 61-43.200 et seq.
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) (Rev. 1987).
9. "Sewage, industrial wastes or other wastes" are broadly defined and encompass dead animals and manure resulting from a chicken facility. S.C. Code Ann. §§ 48-1-10(4), (5), and (6) (Rev. 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 (Rev. 1987).
11. Land use decisions are primarily the responsibility of local 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. 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. South Carolina Dep't of Health and Envtl. 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).
13. 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).
14. 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. South Carolina Dep't of Health and Envtl. Control, 302 S.C. 161, 394 S.E.2d 327 (1990); City of Columbia v. Bd. of Health and Envtl. Control, 292 S.C. 199, 355 S.E.2d 536 (1987).
15. An agency decision must be reached utilizing reasoned judgment and be based upon adequate determining principles and a rational basis. City of Columbia v. Bd. of Health and Envtl. Control, 292 S.C. 199, 355 S.E.2d 536 (1987).
16. 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. 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).
17. If Petitioners are harmed by the operation of the facility in the future, adequate remedies are available through the administrative agency or in the courts of this State.
18. Petitioners have failed to show by a preponderance of the evidence that State Construction Permit #18,442-AG should not be issued. The permit was properly applied for by Respondent and properly reviewed by DHEC under all appropriate statutes and regulations.

ORDER

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 #18,442-AG to Respondent for construction of a chicken broiler facility to be located in Clarendon County.

AND IT IS SO ORDERED.

JOHN D. GEATHERS

Administrative Law Judge

August 4, 1999

Columbia, South Carolina

1. O'Cain v. O'Cain, 322 S.C. 551, 473 S.E.2d 460, 466 (1996).

2. In a South Carolina case and cases of other jurisdictions involving nuisance causes of action concerning poultry, hog, and cattle production, a court of equity was the initial forum. See O'Cain v. O'Cain, 322 S.C. 551, 473 S.E.2d 460 (1996); Weinhold v. Wolff, 555 N.W.2d 454 (1996); Durham v. Britt, 117 N.C.App. 250, 451 S.E.2d 1 (1994); Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974); Griffin v. Newman, 217 Ga. 533, 123 S.E.2d 723 (1962).