South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Jean N. Norris and S. Julian Norris, Jr. vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Jean N. Norris and S. Julian Norris, Jr.

Respondent:
South Carolina Department of Health and Environmental Control and Larry Newton
 
DOCKET NUMBER:
99-ALJ-07-0065-CC

APPEARANCES:
James T. Young, Esquire, for the Petitioners

Thomas G. Eppink, Esquire, and Jessica J. O. King, Esquire, for Respondent South Carolina Department of Health and Environmental Control

Lawrence D. Newton, III, Pro Se Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE



This is a contested case challenging: (1) the issuance of Construction Permit No. 18,294-AG (the 1997 Permit) by the South Carolina Department of Health and Environmental Control (Department) to Larry Newton for a wastewater treatment and/or collection system for a proposed swine facility; and (2) the granting of an addendum (the 1999 Addendum) to the existing swine management plan related to the 1997 Permit by letter dated January 5, 1999. On April 29, 1999, this Court issued its Order of Partial Dismissal dismissing the portion of the action which contested the granting of the 1997 Permit. Afterwards, a hearing was conducted on May 5, 1999.



ISSUES PRESENTED

The Petitioners raise several issues:

1. Whether the 1999 Addendum to the existing swine management plan issued pursuant to the 1997 Permit (Construction Permit No.18,294-AG) constitutes an "expansion" of the existing permitted waste treatment system as defined in 24A S.C. Code Ann. Regs. 61-43.100.10(B) (Supp. 1998), thereby triggering consideration of the permit requirements of Regulation 61-43 in the granting or denial of the addendum; and

2. a. If the 1999 Addendum was not an "expansion," whether the addendum was otherwise properly issued in compliance with Regulation 61-43 and S.C. Code Ann. § 47-20-10 et seq.; or

b. Alternatively, if the 1999 Addendum constitutes an expansion, whether the addendum was properly issued pursuant to Regulation 61-43 and S.C. Code Ann. § 47-20-10 et seq; and

3. Whether the 1999 Addendum was improperly granted because it would negatively affect the Petitioners by creating nuisances from pathogens and odor detrimental to the health of the residents and damaging the use and enjoyment of their property; and

4. Whether the Department violated the Pollution Control Act (the Act), S.C. Code Ann. § 48-1-10 et seq. (1987 & Supp. 1998), by improperly derogating its statutory mandate to abate, control, and prevent pollution and whether Respondents violated the Act by improperly discharging or permitting the discharge of air contaminants or others substances.



BURDEN OF PROOF

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, 496 S.E. 2d 17 (1998); Nat'l Health Corp. v. South Carolina Dep't. Of Health and Environmental Control, 298 S.C. 373, 380 S.E. 2d 841 (Ct. App. 1989).



FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioners, I make the following Findings of Fact by a preponderance of evidence:

General Findings

1. Notice of the date, time, place, and nature of the hearing was timely given to all parties.

2. Respondent Larry Newton, currently operates a hog farm in Marlboro County, South Carolina. The farm is located in a sparsely populated agricultural area. Mr. Newton received a permit to operate the hog farm in 1979 and again in 1997. He now seeks an addendum to the 1997 Permit to increase the permitted number of swine, to increase the normal production animal live weight of the existing permitted swine facility and to add waste utilization areas to his swine facility. Newton submitted an amended Waste Management Plan to the Department. The site was inspected by the Department and the Natural Resources Conservation Service (NRCS), and a plan was developed for Newton by the United States Department of Agriculture (USDA).

3. The Petitioner, Jean N. Norris, is the owner of approximately 118 acres of real property adjoining that of Larry Newton. Newton's hog facility is located approximately 50 feet from Mrs. Norris' property line. Mrs. Norris owns a house upon that property that is located approximately 600 feet from Newton's hog facility and lagoon. However, the home is not a residence but rather is used by the Petitioners for gatherings and recreational events. Additionally, a pond used for fishing is located approximately 800 feet from Newton's facility and lagoon. Currently, Mrs. Norris' son, S. Julian Norris, Jr., is the acting administrator of the farm.

4. A waste treatment lagoon is an impoundment used in conjunction with a swine facility, the primary function of which is to store and/or stabilize organic wastes. There are two principal types of waste treatment lagoons: aerobic (aerated) and anaerobic (without air). A waste storage pond is merely a structure used for impounding or storing manure for a specified time until the pond is emptied. Additionally, a waste storage pond will produce more odor than an aerobic or an anaerobic lagoon because of the high concentration of organic material.

1979 Permit

5. The Department issued a Construction Permit (Construction Permit No. 6100) to Larry Newton in 1979, to construct a wastewater treatment and/or collection system for a hog facility. The permitted wastewater treatment system was consistent with an approved Waste Management Plan (the 1979 Waste Management Plan) design based on the United States Department of Agriculture's NRCS standards in place at that time.

6. The 1979 Waste Management Plan was designed to handle waste from a facility with 330 hogs using a "no discharge" anaerobic lagoon and land application on a tract of land referred to as Tract # 787. Tract # 787 (fields 3 and 3-A) encompasses approximately 11.7 acres.

7. The Petitioners' predecessors in interest owned a residence upon the real property adjacent to fields 3 and 3-A. Furthermore, the waste treatment lagoon was sited within 1000 feet of Petitioner Jean Norris' property line. However, in 1979, the predecessors in interest signed a waiver stating that they were aware of and did not object to Respondent Larry Newton's construction of a disposal lagoon for hog waste on his property within 1,000 feet of their property line.

8. Larry Newton's facility was thereafter closed sometime before May 3, 1987.

9. From 1979 through 1985, the Petitioners experienced offensive odors emanating from the Newton hog facility. Furthermore, the Newton swine facility was inspected on several occasions by Department personnel and received unsatisfactory ratings. However, there are no major water quality or health problems related to this facility.

1997 Permit

10. In 1997, Newton informed the Petitioners that he intended to reopen his swine facility with the same number of swine as existed from 1979 through 1986. Jean Norris did not object to the reopening of the facility by Newton because she understood that the facility would be of the same character and nature as the facility that existed previously under the 1979 Permit.

11. On May 27, 1997, the Department issued the 1997 Permit (Construction Permit No. 18,294-AG) to supersede Respondent Larry Newton's 1979 permit. The 1997 Permit authorized Newton to construct a waste treatment system based on a Waste Management Plan created for Respondent Newton by NRCS and based on NRCS standards in place at that time. The 1997 Waste Management Plan was designed to handle waste from a facility with 440 hogs in which the "weighted average of swine" would be 66,000 pounds. Moreover, the 1997 Waste Management Plan changed the function of the lagoon from an anaerobic lagoon with land application on Tract # 787 to a waste storage pond with land application on Tract # 787. However, the change to the 1979 Waste Management Plan in 1997 did not require any physical construction to change the waste treatment system from a lagoon to a waste storage pond. Rather, the 1997 Permit changed the management of the system to a waste storage pond to accommodate Newton's desire to reopen the existing facility with an increased number of swine.

12. The 1997 Permit was not appealed and became final shortly after its issuance in June of 1997.

13. The 1997 Permit to construct contained twenty-four "special conditions" to ensure the best management of the waste treatment system and provide measures to minimize potential nuisances from flies, pests, dust, and odor.

14. Since Newton resumed his swine operation in 1998, the Petitioners have observed discolored and odoriferous runoff from the land application of the swine waste flowing over their property toward their pond. The Petitioners have also detected offensive odors emanating from Newton's swine houses.

1999 Addendum

15. In late 1998, Respondent Larry Newton submitted a request to modify the 1997 Waste Management Plan to allow him to manage waste from a maximum of 2,293 hogs using the existing waste treatment pond system.(1) The "weighted average of swine" in the modified facility would be 321,020 pounds. The 1999 Addendum allows for continued land application of water or effluent from the waste treatment pond on Tract # 787 (fields 3 and 3-A), and also on the following additional tracts of land on Respondent Newton's property: Tract Numbers 1460, 1465, 1615, and 1461. These four tracts constitute new waste utilization areas. However, the 1999 Addendum does not require any physical change in the contours of the pond. Rather, the modification: (1) shortens the number of days that the existing waste storage pond can contain manure and a net rainfall to a period of 120 days, rather than the 180 days allowed under the 1997 Permit; (2) adds four new tracts to be used for land application; and (3) increases the permitted number of swine to a maximum of 2,293 hogs.

16. The Department handled the modification requested in late 1998 as an Addendum to the 1997 Waste Management Plan and not as an expansion because no physical construction was requested or required. In other words, the requested modification was limited to a request to change the way the existing waste management system would be managed, to add new waste utilization areas, and to change the permitted number of swine.

17. The Department received the request for the 1999 Addendum to the 1997 Permit after the promulgation of Regulation 61-43 (effective June 26, 1998). Therefore, the Department handled the request as an addendum or modification and not an "expansion" as defined in the regulations.

18. The Department approved the addendum in part because, as previously constructed, the current waste water treatment pond met the NRCS specifications for a waste water treatment pond and because it had enough capacity to handle waste from a maximum of 2,293 hogs in light of the proposed modification in the way the pond will be managed.

19. The Department does not view requests for the addition of any new waste utilization areas added to an existing permitted facility after 1996 as requiring a new permit where the Department does not consider them to be part of an expansion. However, the Department does require these new areas to conform to the regulations and approval to use these areas is given via a letter of approval.

20. The Department approved the addition of the four new tracts added in the 1999 Addendum for land application because the Department determined that they conformed to the requirements for new waste utilization areas pursuant to Reg. 61-43. However, the members of Goodwin Chapel A.M.E. Zion Church objected to the use of Tract Number 1460 for waste utilization because of its proximity to the church. The Petitioner testified that he did not intend to use Tract 1460 and agreed to that tract being deleted as a new waste utilization area.

21. Although the Department did not require him to do so, Respondent Newton added certain additional conditions to the twenty-four "special conditions" that remained in effect from the 1997 Permit and that related to odor and vector abatement. Some of the 1999 Addendum conditions are as follows: (1) spreading of effluent from the waste treatment pond on fields near dwellings should be avoided when the wind is blowing toward them; (2) avoiding sites where there are radical shifts in air movement between day and night; (3) spreading of manure should only take place on days with little or no wind and when the prevailing wind is away from residences; (4) wastes should be injected or incorporated soon after spreading; (5) solids should remain covered with effluent at all times to prevent excessive odors; (6) dead animals should be removed daily and disposed of by an approved method; and (7) buildings should be kept free of trash and debris and excess feed to minimize the possibility of insects, rodents or other vectors.

22. Of the five tracts included in the addendum for land application, Tract # 787 is the closest tract to the Petitioners' property and homestead. It was included in the 1979 and 1997 Permits, and is the only one of the five tracts included in the 1999 Addendum that is not required to meet the 200 foot setback requirement in Reg. 61-43. However, for sufficient crop rotation, Respondent Newton needs fifty acres or less of available land to apply the waste from the waste storage pond. The 1999 Addendum as written, has about 128 acres of available land approved for application.



CONCLUSIONS OF LAW

Based upon the above findings of fact, I conclude the following as a matter of law:

1. The Administrative Law Judge Division has subject-matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1998).

2. An agency decision must be reached utilizing reasoned judgment and shall 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).

3. The Department 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 (Pollution Control Act). In addition to that general authority, specific authority for the permitting of animal facilities, such as swine production, is provided in 24A S.C. Code Ann. Regs. 61-43.100 et seq. (Supp. 1998), promulgated pursuant to the 1996 Confined Swine Feeding Operations Act (Swine Act), S.C. Code Ann. §§ 47-20-10 et seq. (Supp. 1998). In this case, Newton's farm will produce swine waste which will be discharged into a waste treatment pond and afterwards applied to approved tracts of land. Because this waste will be discharged into the environment, Newton is required to obtain approval from the Department for his waste management plan. See S.C. Code Ann. §§ 48-1-50, 48-1-90 and 48-1-100(B) and (C) (Supp. 1998). Additionally, 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 (Supp. 1998); 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).

Therefore, it is unlawful to construct or install a waste disposal system prior to approval of a waste plan and issuance of a permit by the Department. S.C. Code Ann. § 48-1-110(a)(1) (1987 and Supp. 1998). 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 and Supp. 1998). "Sewage, industrial wastes or other wastes" are broadly defined and encompass dead animals and manure resulting from a hog facility. S.C. Code Ann. §§ 48-1-10(4), (5) and (6) (1987 and Supp. 1998).

4. The Swine Act requires the Department to publish notice of intent to construct in a local newspaper only for swine facilities which have the capacity for more than 420,000 pounds of normal production animal live weight and to allow a thirty day comment period. S.C. Code Ann. § 47-20-140 (Supp. 1998). A public hearing is conducted if there are at least twenty letters received requesting a public hearing. Under the regulations, the Department is not required to conduct a public hearing for small swine facilities but is required to consider any letters received about the proposed facility. See 24A S.C. Code Ann. Regs. 61-43.100.70(G)(3) (Supp. 1998). A small facility is "a swine facility with a capacity for 420,000 pounds of normal production animal live weight or less at any one time." 24A S.C. Code Ann. Regs. 61-43.100.20 (II) (Supp. 1998).

5. The minimum separation distance required between a waste storage pond and waters of the state is 1,320 feet (one-fourth mile). S.C. Code Ann. § 47-20-20(6) (Supp. 1998). "Waters of the State" as defined by S.C. Code Ann. § 47-20-10(15) includes ponds. Additionally, " '[w]aste storage pond' means a structure used for impounding or storing manure, wastewater, and contaminated run-off as a component of an agricultural waste management system. Waste is stored for a specified period of time, one year or less, and then the pond is emptied." 24A S.C. Code Ann. Regs. 61-43.100.20 (QQ) (Supp. 1998).

Expansion

6. Regulation 61-43 and the Swine Act were in effect when the 1999 Addendum was applied for by Respondent Larry Newton and, thus, apply to the addendum. Pursuant to Regulation 61-43, an existing swine facility that is permitted under Reg. 61-43.100.10(B)(1) is excluded from the permit requirements in the regulation unless an expansion is proposed or new waste utilization areas are added. Regulation 61-43.100 defines an "expansion" as an "increase due to construction in the maximum capacity of an existing lagoon or waste storage pond as determined using design standards of the United States Department of Agriculture's Natural Resource Conservation Service." Reg. 61-43.100.20(O). Therefore, an existing swine facility that is not expanding and that has been fully operational since receiving its permit does not need to apply for a new permit under the regulations. Reg. 61-43.100.10 (B).

Newton's facility has been fully operational since it received its 1997 Permit. His requested modification in 1998 does not constitute an expansion as defined in the regulations because the modification will not result in new construction on the existing waste water treatment pond. Therefore, Newton was not required to apply for a new permit in 1998 and the Department properly treated the 1998 request as an addendum or modification to the existing plan under the 1997 Permit. However, Newton is seeking modifications that must be pre-approved in writing by the Department. See Reg. 61-43.100.30 (D). Those modifications are: (1) an increase in the permitted number of swine; (2) the addition of waste utilization areas; and (3) a change in swine waste treatment, handling, or disposal. Reg. 61-43.100.30(D)(2), (4), & (5). The evidence does not establish that any of the new waste utilization areas do not comply with the provisions of Reg. 61-43.100.40(A). However, the permit upon which this modification was based was for a small swine facility with less than 210,000 pounds live animal weight at any one time.

The notice to the Petitioners and the Department's subsequent granting of the 1997 Permit was based upon a projected level of operation at Newton's hog facility of less than 210,000 pounds live animal weight at any one time. Regulation 61-43 100.80(B) sets forth, in relevant part, that:

(1) For small facilities with a capacity of 210,000 pounds or less of normal production animal live weight at any one time, the minimum separation distance required between a lagoon and/or a waste storage pond and real property owned by another person is 300 feet and the distance to lot line of real property owned by another person and swine growing areas (pens or barns not including range areas) is 200 feet.

(2) For small swine facilities with a capacity of more than 210,000 pounds and less than 420,001 pounds of normal production animal live weight at any one time, the minimum separation distance required between a lagoon and/or a waste storage pond and real property owned by another person is 600 feet and the distance to lot line of real property owned by another person and swine growing areas (pens or barns not including range areas) is 400 feet.

(3) The distances in items 1 and 2 above can be reduced by written consent of the adjoining property owner. . . .



Therefore, according to Regulation 61-43 100.80(B)(1), the minimum separation distance for the 1997 permitted facility and the Petitioners' property line was 300 feet. However, in reliance upon the parameters the 1997 Permit, the Petitioners waived this separation requirement and allowed the facility to be located approximately 50 feet from Mrs. Norris' property line.

Similarly, according to Regulation 61-43 100.80(B)(2), the minimum separation for a facility with more than 210,000 pounds but less than 420,001 pounds live animal weight at any one time is 400 feet. The waiver by the Petitioners was for a facility with the projected level of operation of less than 210,000 pounds live animal weight at any one time. I find that approving a modification to the 1997 Permit that increases the level of operation to more than 210,000 pounds live animal weight at any one time without a specific waiver by the Petitioners of such a facility is improper. Therefore, the modification of this Permit should be limited to the original parameters for which its was granted. (2) Consequently, Newton cannot expand the operation of his facility to the "weighted average of swine" in excess of 210,000 pounds at any one time under the 1997 Permit without a waiver from the Petitioners. See 24A S.C. Code Ann. Regs. 61-43 100.10(UU) Supp. 1998).

Nuisance

7. The Petitioners allege that Permit conditions regarding the land application of waste from Mr. Newton's swine facility will not prevent a negative environmental impact on their neighboring property. The Petitioners specifically argue that operation of the facility and the land application of waste generated by Mr. Newton's swine facility will result in an odor upon their land. This Court's consideration of the Petitioners' opposition to the issuance of the permit is limited to issues of environmental and health protection and pollution control. However, under certain conditions, "nuisance factors" such as odors may, in and of themselves, constitute a threat to the health and welfare of the public and, in particular, neighboring residents.(3) Moreover, the Department is no less responsible under the Swine Act for regulating and controlling the operation of Newton's facility and the resulting discharges of air contaminants into the environment, including odors, than for regulating any other pollutants which are injurious to human health, welfare and the environment. The Department acknowledges its responsibility by addressing these impacts in its permitting regulations as well as in the conditions it included and incorporated into this permit. 24A S.C. Code Ann. Regs. 61-43.100.150 (B)(4) (Supp. 1998). Regulation 61-43.100.150 specifically sets forth "management practices" that swine facilities must follow to insure that odors do not become nuisances.

This Court does not take lightly the concerns raised by the Petitioners related to odors created by the swine facility. However, the Petitioners did not produce sufficient evidence to demonstrate that the operation of the facility will pose a threat to the environment or the health and welfare of the citizens of the State of South Carolina. Newton's facility is operated in a rural, agricultural area of Marlboro County. There are twenty-four special conditions incorporated into the permit to protect the public health and environment and to ensure proper operation and maintenance of the facility. Additionally, Mr. Newton himself added additional conditions to the twenty-four "special conditions" that remained in effect from the 1997 Permit to further insure the proper management of odor and vector abatement. Proper management of the facility is a primary factor in prevention and reduction of odors and flies from a swine operation. Mr. Newton testified that he is aware of the permit conditions governing operation and maintenance of his facility and intends to abide by those conditions. Therefore, the Department properly approved the 1999 Addendum to the 1997 Permit. The Addendum adequately addresses abatement, control, and prevention of any possible nuisances from flies, dust, pathogens and odors and would not, therefore, be detrimental to the health of the residents nor interfere with the use and enjoyment of their property.

Furthermore, while the Department's authority is broad, in the absence of a duty related to the health and welfare of the public, the Department is not charged with the responsibility of establishing the land uses within an area. See S.C. Code Ann. § 48-1-20 (1987 and Supp. 1998). Additionally, Regulation 61-43 does not purport to zone swine facilities to certain areas. The regulation does establish "site selection" criteria for the protection of the environment and public health. However, "[t]he location of swine facilities and waste utilization areas as they relate to zoning in an area is not covered in this regulation. Local county or municipal governments may have zoning requirements and these regulations neither interfere with nor restrict such zoning requirements. Permit applicants should contact local municipal and county authorities to determine any local requirements that may be applicable." Reg. 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 (1975).

Estoppel

8. The Petitioners contend that Newton should be estopped from increasing the number of permitted swine at his facility from 440 to 2,293. They argue that they were informed that the operation would be of the same character and nature that existed from 1979 through 1986. Had they known the facility would be larger than that which was in operation from the late 1970s through the mid 1980s, they never would have consented to the issuance of the May 1997 permit. Therefore, relying on the statements of Newton, the Petitioners did not challenge the issuance of the 1997 Permit and thus changed their position to their detriment.

The elements of estoppel in relation to the party estopped are: (1) conduct which amounts to a false representation or concealment of material facts, or at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the real facts. For the party claiming estoppel, the essential elements are: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) prejudicial change in position. McKinney v. S.C. Police Officers Retirement System, 311 S.C. 372, 429 S.E. 2d 797 (1993) (Toal, J., dissenting). Although the Petitioners presented some evidence relating to Newton's alleged statement that he "may have misled" Mrs. Norris, this evidence is insufficient to establish that Newton deliberately and intentionally made false representations to the Petitioners, or that he concealed material facts at the time of his application for the 1997 permit. Accordingly, even if this Court had jurisdiction to consider the Petitioners' estoppel arguments in determining the efficacy of the 1999 Addendum, the Petitioners did not sufficiently establish the elements of estoppel. Therefore, Newton may not be estopped from increasing the number of swine at the facility pursuant to the 1999 Addendum.

ORDER

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

ORDERED that the South Carolina Department of Health and Environmental Control issue the 1999 Addendum to Construction Permit No. 18,294-AG to Respondent Larry Newton with the deletion of Tract 1460 as a new waste utilization area and limitation of the facility to a facility with the level of operation of less than 210,000 pounds live animal weight at any one time.

AND IT IS SO ORDERED.



_____________________________

Ralph King Anderson, III

Administrative Law Judge



January 11, 2000

Columbia, South Carolina

1. Mr. Newton received a letter from the Department dated January 5, 1999, setting forth that the issue date of approval for his addendum request was January 11, 1999, while the effective date was January 26, 1999. It is because of these dates that the addendum is referred to herein as the "1999 Addendum."

2. The Department contends that because Newton's facility was originally permitted before July 1, 1996 and it has been fully operational since it received its 1997 Permit superseding its 1979 Permit, Regulation 61-43.100.10(C)(1)(Supp. 1998) exempted Newton from the requirement to apply for a new permit in 1998. However, Regulation 61-43.100.40(E)(Supp. 1998) provides that "[f]acilities exempted under [Section 100.10 (C)(1)] may be required by the Department to obtain a permit." Therefore, even under the Department's reasoning, I find that modification of the permit should be limited to a facility with the projected level of operation of less than 210,000 pounds live animal weight at any one time, absent the issuance of a new permit.

3. For instance, 24A S.C. Code Ann. Regs.61-46, §3 (1976) generally provides that "[a]ny . . . industry shall at all times be properly policed and staffed so as to maintain a safe, sanitary, and tidy condition. Any 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." (Emphasis added). In fact, the Department has broad powers relating to the protection of the environment and the health and welfare of the citizens of South Carolina, and, in accordance with those powers, may "take action to abate, control and prevent pollution of the air and water resources of this State consistent with the public health, safety and welfare of its citizens." S.C. Dep't of Health and Envtl. Control v. Armstrong, 293 S.C. 209, 359 S.E. 2d 302, 305 (Ct. App. 1987). Such action may include the issuance, denial, revocation, suspension, or modification of permits under such conditions as the Department may prescribe for the discharge of waste into the environment or for the installation or operation of disposal systems. See S.C. Code Ann. § 48-1-50(5) (1987). Therefore, the Department has the duty to consider nuisance impacts resulting from the operation of the facility being permitted, and to impose sufficient conditions in the permit to prevent harm to the environment or to the health and welfare of nearby residents. In addition, should threats to the environment, public health or welfare arise from the operation of the facility, the Department has the duty and authority to inspect the facility and to require immediate abatement of such threats. See S.C. Code Ann. § 44-1-140 (1976).


Brown Bldg.

 

 

 

 

 

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