Charles S. Blackmon v. SCDHEC ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Charles S. Blackmon and South Carolinians for
Responsible Agricultural Practices, Appellants,
v.
South Carolina Department of Health and Environmental
Control, and David Coggins Broilers, Respondents,
Charles S. Blackmon and South Carolinians for
Responsible Agricultural Practices, Appellants,
v.
South Carolina Department of Health and Environmental
Control, and Heath Coggins Broilers, Respondents,
Charles S. Blackmon and South Carolinians for
Responsible Agricultural Practices, Appellants,
v.
South Carolina Department of Health and Environmental
Control, and Jim Young Broilers, Respondents.
Appellate Case No. 2017-002598
Appeal From The Administrative Law Court
Ralph King Anderson, III, Administrative Law Judge
Opinion No. 5911
Heard December 9, 2020 – Filed May 25, 2022
REVERSED AND REMANDED
Robert Guild, of Robert Guild, Attorney at Law, of
Columbia, for Appellants.
Mitchell Willoughby and Tracey Colton Green, both of
Willoughby & Hoefer, PA, of Columbia, for
Respondents David Coggins Broilers, Heath Coggins
Broilers, and Jim Young Broilers.
Michael Smoak Traynham, of Nexsen Pruet, LLC, of
Columbia; and Sara Volk Martinez and Stephen Philip
Hightower, both of the South Carolina Department of
Health and Environmental Control, of Columbia; all for
Respondent South Carolina Department of Health and
Environmental Control.
LOCKEMY, A.J.: In this contested case, Charles S. Blackmon and South
Carolinians for Responsible Agricultural Practices (collectively, Appellants)
appeal the order of the Administrative Law Court (the ALC) affirming the South
Carolina Department of Health and Environmental Control's (the Department's)
issuance of agricultural permits to David Coggins Broilers, Heath Coggins
Broilers, and Jim Young Broilers (collectively, Broilers). Appellants argue the
ALC erred in (1) deferring to the Department's interpretation of regulations
61-9.122 and 61-43 Part 200 of the South Carolina Code1 and concluding that, as a
matter of law, Broilers were not required to apply for a separate National Pollutant
Discharge Elimination System (NPDES) permit or obtain an exemption from the
Department; (2) deferring to the Department's interpretation of regulation 61-43
that allowed it to avoid mandated aspects of permit evaluation and precluded a
meaningful review of the permit application; and (3) requiring Appellants to
establish actual discharges of pollutants by existing permittees. We reverse and
remand to the Department.
1
S.C. Code Ann. Regs. 61-9.122 to 61-9.125 (2011 & Supp. 2021) (implementing
the National Pollutant Discharge Elimination System (NPDES) program); S.C.
Code Ann. Regs. 61-43.200.10 to 200.200 (2011 & Supp. 2021) (setting forth the
standards for permitting of agricultural facilities other than swine).
FACTS AND PROCEDURAL HISTORY
In 2016, Broilers each submitted an application to the Department for new
agricultural animal facilities permits to construct and operate their proposed broiler
facilities. Broilers collectively proposed to construct eighteen broiler houses on a
255-acre tract located in the Little River watershed in the Mountville area of
Laurens County. David Coggins Broilers' facility proposed to house 162,000
broilers, and Heath Coggins Broilers and Jim Young Broilers each proposed to
house 237,600 broilers in their respective facilities.
As part of the application process, public notices were sent to neighboring property
owners notifying them of Broilers' intent to apply for agricultural permitting. At
the request of several Mountville citizens, the Department held public meetings in
September and October of 2016. Blackmon and several other property owners in
the Mountville area, including Margaret Sparrow, Mary Basel, Kathy Lowman,
and Eugene Ross Stewart, formed an unincorporated association called "South
Carolinians for Responsible Agricultural Practices" to challenge Broilers' proposed
facilities.
After reviewing the applications and completing "Agricultural Permitting Review
Checklists," the Department issued Bureau of Water Agricultural Permits to all
Broilers in November and December of 2016. Each permit provided for the
operation of "no-discharge" facilities and contained a special condition that
required Broilers to "[o]perate and maintain [a] waste management system in
accordance with State and Federal law so as to prevent discharges to the
environment." Public notices were circulated in a local publication after the
Department issued the permits.
After the Department declined Appellants' requests to hold a final review
conference as to Broilers' permits, Appellants filed a request for a contested case
hearing with the ALC as to each permit.2 The ALC granted the parties' request to
consolidate the three cases for purposes of the contested case hearing.
Broilers moved for partial summary judgment, arguing they were not required to
seek NPDES permits for the facilities because the agricultural permits the
Department issued to them prohibited the discharge of pollutants into the waters of
the state. Broilers asserted the Department was therefore not required to follow the
2
Appellants challenged each of the permits on five grounds. The only ground
raised on appeal concerns the discharge of pollutants into waters of the state.
procedure set forth in regulation 61-9.122.23(d)(2)3 for determining whether the
facilities had "no potential to discharge."
The ALC held a merits hearing. Appellants presented the testimony of several
witnesses, including Dr. David Hargett, who testified as an expert in soil and water
resource management; William Chaplin, an employee of the Department, who
testified he reviewed Broilers' permit applications; and Christopher Mosley, a staff
member of Agri-Waste Technology, Inc., who testified he prepared the
Comprehensive Nutrient Management Plans (CNMPs) for each of the three
applications. Mosley explained that in drafting each of the CNMPs, his team used
soil maps, topographical maps, and satellite imagery, and conducted site visits.
The CNMPs provided the number of broilers to be housed at the facilities, the
amount of litter that would be produced, Broilers' plan for disposing of that litter,
and the setback distances for the facilities.
The ALC accepted proposed orders from Appellants, Broilers, and the Department.
The ALC granted partial summary judgment in favor of Broilers and the
Department (collectively, Respondents), concluding an NPDES permit was not
required and the Department was not required to determine whether the facilities
had no potential to discharge.
Although the ALC found "the plain language of [regulation] 61-9.122.23
define[d]" Broilers as concentrated animal feeding operations (CAFOs), it
concluded "the Department's application of [regulation] 61-43 part 200 in keeping
with the regulation of CAFOs under the NPDES provisions [wa]s entitled to
deference." Specifically, the ALC deferred to the Department's interpretation of
regulations 61-43.200 and 61-9.122.23 that by issuing an agricultural permit
pursuant to regulation 61-43.200, the Department also determined the facility had
no potential to discharge into the waters of the state under regulation 61-9.122.23.
The ALC reasoned that because permits issued pursuant to regulation 61-43.200
were "no-discharge" permits—and as such did not allow the facilities to discharge
pollutants—there was an inherent determination the facilities had "no potential to
discharge." See Regs. 61-43.200.20(B) ("Permits issued under this regulation are
3
Regs. 61-9.122.23(d)(2) (providing "[a]n owner or operator of a Large
[concentrated animal feeding operation (CAFO)] need not seek coverage under an
NPDES permit otherwise required by this section once the owner or operator has
received from the Department notification of a determination under paragraph (f)
of this section that the CAFO has 'no potential to discharge' manure, litter, or
process wastewater").
no-discharge permits."). The ALC thus concluded the permits prohibited Broilers
from discharging pollutants into waters of the state and because Broilers did not
seek to discharge pollutants into waters of the state, they were not required to apply
for or obtain an NPDES permit as a matter of law. Additionally, the ALC opined,
"Even if facts later reflect that [Broilers] are obligated to seek or obtain an NPDES
permit because they are 'new source' CAFOs, that obligation would not occur until
'at least 180 days prior to the time that the CAFO[s] commence[d] operation'" and
therefore, this issue was not ripe for consideration. The ALC considered
Appellants' remaining arguments and affirmed the Department's issuance of the
permits. The ALC found the Department complied with the regulatory
requirements in reviewing and issuing the permits. However, the ALC increased
the setbacks of the facilities to move them farther from the Little River.4 Finally,
the ALC added a condition to the permits that provided, "The Permits shall be
conditioned upon each of the permittees obtaining a stormwater permit that
addresses whether the setback limitation should exceed the minimum
requirements." This appeal followed.
ISSUES ON APPEAL
1. Did the ALC err in deferring to the Department's interpretation of regulations
61-9 and 61-43 in concluding Broilers were not required either to obtain an
NPDES permit or request a determination by the Department that their operations
had "no potential to discharge"?
2. Did the ALC err in deferring to the Department's interpretation of regulation
61-43 that allowed the Department to avoid mandated aspects of permit evaluation,
thus precluding meaningful review of agricultural permit applications?
3. Did the ALC err in imposing a burden upon Appellants to prove actual
discharges of pollutants into waters of the state by existing agricultural permittees?
4
To address the complaints Basel—one of the property owners—raised during the
public comment period, Chaplin required David Coggins and Jim Young to move
their proposed facilities farther from Basel's property, which would have resulted
in the facilities being closer to the Little River. The ALC's ruling reversed this
accommodation and required the facilities to be moved back to their originally
proposed location, farther from the Little River.
STANDARD OF REVIEW
This court may reverse a decision of the ALC "if the substantive rights of the
petitioner have been prejudiced because the finding, conclusion, or decision
is . . . affected by [an] error of law . . . [or is] arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of discretion."
S.C. Code Ann. § 1-23-610(B)(d),(f) (Supp. 2021). This court reviews questions
of law de novo. S.C. Dep't of Revenue v. Blue Moon of Newberry, Inc., 397 S.C.
256, 260, 725 S.E.2d 480, 483 (2012). "The construction of a regulation is a
question of law . . . ." Id. (quoting 2 Am. Jur. 2d Administrative Law § 245).
"[W]e will reject [an] agency's interpretation if it is contrary to the regulation's
plain language." Id. at 261, 725 S.E.2d at 483.
LAW AND ANALYSIS
I. NPDES Permits
Regulation 61-9.122.1(b)(1) defines the scope of the NPDES permit requirement
and provides it "requires permits for the discharge of 'pollutants' from any 'point
source' into 'waters of the State.'" Regs. 61-9.122.1(b)(1). Paragraph (b)(4)
provides that a "concentrated animal feeding operation [(CAFO)] as defined in
section 122.23" is a "point source[]" that requires an NPDES permit "for
discharges." Regs. 61-9.122.1(b)(4)(i). Regulation 61-9.122.23(a) provides
CAFOs, as defined in regulation 61-9.122.23(b), are point sources "that require
NPDES permits for discharges or potential discharges," and regulation
61-9.122.21(a)(1) states, "All [CAFOs] . . . have a duty to seek coverage under an
NPDES permit, as described in section 122.23(d)." (emphasis added); see
also Regs. 61-9.122.2(b) (stating a "[d]ischarge of a pollutant" means "[a]ny
addition of any pollutant or combination of pollutants to waters of the State from
any point source"); id. (providing a "point source" includes "any . . . [CAFO] from
which pollutants are or may be discharged" (emphasis added)); id. ("'Point source
discharge' means a discharge [that] is released to the waters of the State by a
discernible, confined and discrete conveyance, including but not limited to
a . . . [CAFO] . . . from which waste is or may be discharged.").
Paragraph (d) of this regulation states a CAFO owner or operator "must seek
coverage under an NPDES permit" unless it has "received from the Department
notification of a determination under paragraph (f)" that it "has 'no potential to
discharge' manure, litter, or process wastewater." Regs. 61-9.122.23(d)(1)-(2).
Paragraph (f)(1) provides,
The Department, upon request, may make a case-specific
determination that a Large CAFO has "no potential to
discharge" pollutants to waters of the State. In making
this determination, the Department must consider the
potential for discharges from both the production area
and any land application areas. . . . For purposes of this
section, the term "no potential to discharge" means that
there is no potential for any CAFO manure, litter, or
process wastewater to be added to waters of the State
under any circumstance or climatic condition. A
determination that there is "no potential to discharge" for
purposes of this section only relates to discharges of
manure, litter, and process wastewater covered by this
section.
Regs. 61-9.122.23(f)(1) (emphases added).
The CAFO owner or operator must seek coverage under an NPDES permit at least
180 days before commencing operations and must include the information
specified in regulations 61-9.122.21(f) and 61-9.122.21(i)(1)(i) to (ix) with its
request. See Regs. 61-9.122.23(f)(2), (g)(4); Regs. 61-9.122.21(f),(i). Regulation
61-9.122.21(f) requires basic information concerning the CAFO's geographical
location, its contact information, its business activities, its principal products or
services, and any permits or construction approvals it has received or for which it
has applied. Regulation 61-9.122.21(i)(1)(i) to (ix) requires that a CAFO provide
the following in addition to basic contact information:
(iii) Latitude and longitude of the production area
(entrance to production area);
(iv) A topographic map of the geographic area in which
the CAFO is located showing the specific location of the
production area . . . ;
(v) Specific information about the number and type of
animals, whether in open confinement or housed under
roof . . . ;
(vi) The type of containment and storage . . . and total
capacity for manure, litter, and process wastewater
storage . . . ;
(vii) The total number of acres under control of the
applicant available for land application of manure, litter,
or process wastewater;
(viii) Estimated amounts of manure, litter, and process
wastewater generated per year (tons/gallons); [and]
(ix) Estimated amounts of manure, litter, and process
wastewater transferred to other persons per year
(tons/gallons) . . . .
The NPDES permitting requirements also specify that a "'no potential to discharge'
determination does not relieve the CAFO from the consequences of an actual
discharge." Regs. 61-9.122.23(f)(5). Further, the Department retains the authority
to subsequently require an NPDES permit if circumstances at the facility change.
See Regs. 61-9.122.23(f)(6).
Part 200 of Regulation 61-43 governs the permitting of animal facilities. "Permits
issued under this regulation are no-discharge permits." Regs. 61-43.200.20(B). In
making permitting decisions, "The Department shall act on all permits to prevent,
so far as reasonably possible considering relevant standards under state and federal
laws, an increase in pollution of the waters and air of the [s]tate from any new or
enlarged sources." Regs. 61-43.200.70(E).
Appellants contend the ALC erred by deferring to the Department's interpretation
that its issuance of a "no-discharge" permit pursuant to part 200 of regulation
61-43 constituted "an inherent determination that the facilities ha[d] no 'potential to
discharge'" in keeping with regulation 61-9.122.23(f). Appellants argue that
because the plain language of regulations 61-9 and part 200 of 61-43 are contrary
to the Department's interpretation, this court should reverse the ALC's decision.
They assert that, by definition, large CAFOs have a potential to discharge and the
Department's interpretation that Broilers were not large CAFOs was contrary to the
plain language of regulation 61-9. In addition, Appellants argue the ALC erred by
finding as an additional sustaining ground that the issue was not ripe for judicial
determination. We agree.
"[O]ur deference doctrine provides that courts defer to an administrative agency's
interpretations with respect to the statutes entrusted to its administration or its own
regulations 'unless there is a compelling reason to differ.'" Kiawah Dev. Partners,
II v. S.C. Dep't of Health & Envtl. Control, 411 S.C. 16, 34, 766 S.E.2d 707, 718
(2014) (quoting S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl.
Control, 363 S.C. 67, 75, 610 S.E.2d 482, 486 (2005)). "We defer to an agency
interpretation unless it is 'arbitrary, capricious, or manifestly contrary to the
statute.'" Id. at 34-35, 766 S.E.2d at 718 (quoting Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council Inc., 467 U.S. 837, 844 (1984)); see also Murphy v. S.C. Dep't of
Health & Envtl. Control, 396 S.C. 633, 640-41, 723 S.E.2d 191, 195 (2012)
(deferring to the Department's "construction and application" of a regulation when
it was "both reasonable and consistent with the plain language of the regulation").
"A decision is arbitrary if it is without a rational basis, is based alone on one's will
and not upon any course of reasoning and exercise of judgment, is made at
pleasure, without adequate determining principles, or is governed by no fixed rules
or standards." Converse Power Corp. v. S.C. Dep't of Health & Envtl. Control,
350 S.C. 39, 47, 564 S.E.2d 341, 345 (Ct. App. 2002) (quoting Deese v. State Bd.
of Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct. App. 1985)).
"Regulations are interpreted using the same rules of construction as statutes."
Murphy, 396 S.C. at 639, 723 S.E.2d at 195. "When interpreting a regulation, we
look for the plain and ordinary meaning of the words of the regulation, without
resort to subtle or forced construction to limit or expand the regulation's
operation." Id. at 639-40, 723 S.E.2d at 195 (quoting Converse Power Corp., 350
S.C. at 47, 564 S.E.2d at 346)). "Whe[n] the language of a regulation is plain,
unambiguous, and conveys a clear and definite meaning, interpretation of the
regulation is unnecessary and improper." Kiawah Dev. Partners, II, 411 S.C. at
39, 766 S.E.2d at 720-21. "However, if applying the regulation's plain language
would lead to an absurd result, we will interpret the regulation in a manner which
avoids the absurdity." Blue Moon of Newberry, Inc., 397 S.C. at 261, 725 S.E.2d
at 483.
As an initial matter, we address Respondents' procedural arguments. We reject
Respondents' assertions that Appellants failed to preserve the arguments they raise
on appeal and that the issues are not ripe for judicial determination. As to
preservation, Appellants advanced their arguments to the ALC that Broilers were
required to either seek an NPDES permit or obtain an exception from the
Department and that the Department improperly interpreted its regulations and
failed to conduct a site-specific evaluation to determine whether Broilers had a
potential to discharge and thus contribute to the pollution of waters of the state.
The ALC ruled on these issues. We therefore conclude Appellants' arguments are
preserved for our review. Herron v. Century BMW, 395 S.C. 461, 465, 719 S.E.2d
640, 642 (2011) ("[I]ssue preservation requires that an issue be raised to and ruled
upon by the trial judge."). As to ripeness, the regulations require CAFOs to apply
for an NPDES permit at least 180 days before the CAFO begins operation;
however, nothing prevents a party from applying sooner. See
Regs. 61-9.122.23(g). Further, Respondents contend Broilers were not required to
apply for such permit, regardless of timing. Thus, we find the issue is ripe for
judicial determination. See Waters v. S.C. Land Res. Conservation Comm'n, 321
S.C. 219, 227, 467 S.E.2d 913, 917-18 (1996) ("A justiciable controversy is a real
and substantial controversy which is ripe and appropriate for judicial
determination, as distinguished from a contingent, hypothetical or abstract
dispute." (quoting Pee Dee Elec. Coop., Inc. v. Carolina Power & Light Co., 279
S.C. 64, 66, 301 S.E.2d 761, 762 (1983)).
On the merits, we find the ALC erred in deferring to the Department's
interpretation of regulation 61-9.122 and part 200 of regulation 61-43 and in
concluding Broilers were not required to apply for an NPDES permit or obtain an
exemption. See § 1-23-610(B) (providing this court may reverse the decision of
the ALC when the decision is affected by an error of law). The Department
determined that because it issued Broilers a no-discharge permit—which prohibits
Broilers from discharging pollutants into the waters of the state—Broilers were
neither required to apply for an NPDES permit nor request a determination that
they had no potential to discharge. According to the plain language of the
regulations, Broilers are large CAFOs by definition because they proposed to
house between 162,000 and 237,000 broiler chickens, using a dry manure handling
system. See Regs. 61-9.122.23(b)(2) (stating a CAFO means an animal feeding
operation (AFO) "that is defined as a Large CAFO or as a Medium CAFO by the
terms of this paragraph," or that the Department designates as a CAFO);
Regs. 61-9.122.23(b)(4)(x) (providing a large CAFO is an AFO that stables or
confines 125,000 chickens or more and uses other than a liquid manure handling
system). Regulation 61-9.122.2 states a CAFO comprises a point source and thus
requires an NPDES permit for discharges. See Regs. 61-9.122.1(b)(4)(i). Under
regulation 61-9.122.23(d), large CAFOs are required to apply for an NPDES
permit unless they obtain a determination from the Department pursuant to
regulation 61-9.122.23(f) that they have "no potential to discharge."
See Regs. 61-9.122.23(d)-(f). Paragraph (f) provides "the term 'no potential to
discharge' means that there is no potential for any CAFO manure, litter, or process
wastewater to be added to waters of the State under any circumstance or climactic
condition." Regs. 61-9.122.23(f)(1) (emphasis added). The Department's
conclusion that a "no discharge" permit—which prohibits a facility from
discharging pollutants into the waters of the state—is the equivalent of a
determination under regulation 61-9.122.23(f) that the facility has "no potential to
discharge" is manifestly contrary to the language of the regulation, which requires
the Department to make a case-specific evaluation. See Regs. 61-9.122.23(f)(1).
The Department's issuance of a no-discharge permit did not satisfy this
requirement because the Department did not specifically consider whether there
was no potential for any CAFO manure, litter, or process wastewater from Broilers'
proposed facilities to be added to the waters of the State "under any circumstance
or climactic condition." See id. Simply because the no-discharge permit
prohibited Broilers from discharging pollutants into the waters of the state did not
mean they had no potential to discharge pollutants within the meaning of
regulation 61-9. Rather, the Department was required to evaluate Broilers'
proposed facilities to determine whether there was any potential to discharge.
Thus, we conclude the ALC erred in deferring to the Department's interpretation of
regulation 61-9 and in finding Broilers had "no potential to discharge" because the
Department issued them no-discharge permits.
Further, we reject the Department's argument that as a result of the Waterkeeper
decision, it no longer has authority under regulation 61-9.122.23 to require a large
CAFO to obtain an NPDES permit and that such CAFOs have no obligation to
seek the Department's determination that the CAFO has no potential to discharge.
See Waterkeeper All., Inc. v. U.S. Envtl. Prot. Agency, 399 F.3d 486 (2d Cir.
2005). In Waterkeeper, the Second Circuit Court of Appeals concluded that, with
respect to CAFOs, "unless there is a 'discharge of any pollutant,' there is no
violation of the [Clean Water] Act, and point sources are, accordingly, . . . [not]
statutorily obligated to seek or obtain an NPDES permit." Id. at 504. The court
explained that "in the absence of an actual addition of any pollutant to navigable
waters from any point, there is no point source discharge, no statutory
violation, . . . and no statutory obligation of point sources to seek or obtain an
NPDES permit in the first instance." Id. at 505. The South Carolina regulations at
issue are based not only on the federal NPDES regulations but also upon the South
Carolina Pollution Control Act, which specifically authorizes the Department to
"prevent pollution." See Regs. 61-9.122.1(a)(1) (stating "[t]he regulatory
provisions contained in [regulations] 61-9.122 and 124 implement
the . . . []NPDES[] Program under . . . the Clean Water Act . . . and the South
Carolina Pollution Control Act"); see also S.C. Code Ann. §§ 48-1-10 to -350
(2008 & Supp. 2021) (setting forth South Carolina's Pollution Control Act);
§ 48-1-20 (declaring it is "the public policy of the State to maintain reasonable
standards of purity of the air and water resources of the State" and authorizing the
Department to "abate, control[,] and prevent pollution" (emphasis added)). We
acknowledge the CAFO regulation in the federal NPDES section of the Clean
Water Act has since been amended and now provides that a CAFO must seek an
NPDES permit only if it either discharges or proposes to discharge a pollutant. 40
C.F.R. § 122.23 (2008). Here, the ALC determined Waterkeeper was not
controlling, and as Broilers acknowledge, neither the Department nor the state has
taken any action since the 2005 Waterkeeper decision to repeal or amend our state
regulatory scheme with respect to CAFOs. South Carolina's NPDES regulations
therefore remain in effect and Waterkeeper and the subsequent revisions to the
federal regulations did not abrogate or otherwise repeal them.5
We acknowledge regulation 61-9.122.23 provides that even when the Department
determines there is no potential to discharge, Broilers would still be in violation of
the regulation if they in fact contributed pollutants to the waters of the state.
Regulation 61-43 likewise prohibits discharges and provides the Department
authority to enforce compliance with the no-discharge permit. The Pollution
Control Act provides for criminal and civil penalties when a person "throw[s],
drain[s], run[s], or allow[s] to seep, or otherwise discharges organic or inorganic
matter into the waters of the [s]tate" unless that discharge is "in compliance with a
permit issued by the [D]epartment." See § 48-1-90. Nevertheless, none of these
measures equal a finding by the Department that Broilers had no potential to
discharge, which our regulations require to excuse a CAFO from obtaining an
NPDES permit.
Based on the foregoing, we find the ALC erred in deferring to the Department's
interpretation of the regulations and in concluding Broilers were not required to
apply for an NPDES permit because the issuance of a no-discharge permit
constituted a determination by the Department that Broilers had no potential to
discharge. We therefore reverse as to this issue and remand to the Department for
further evaluation pursuant to regulation 61-9.
5
As to the Department's contention the regulations contained in regulation
61-9.122 are unenforceable because they were enacted without legislative
approval, the Department raises this argument for the first time on appeal.
Therefore, we decline to consider this argument as an additional sustaining ground.
See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 421, 526 S.E.2d 716, 724
(2000) ("[A] respondent may raise an additional sustaining ground that was not
even presented to the lower court, but the appellate court is likely to ignore it.").
II. Permit Evaluation
Appellants next contend the ALC erred by accepting DHEC's interpretation of
certain provisions within part 200 of regulation 61-43 and requiring Appellants to
show actual discharges from other facilities. Appellants assert that in 2004, the
Department issued a "Total Maximum Daily Load" (TMDL) for the Little River
because its watershed had impaired water quality due to excessive levels of fecal
bacteria and it identified poultry facilities as possible contributors to the
impairment. Appellants argue the Department unreasonably interpreted regulation
61-43.200.70(F) and 61-43.200.140(B) to (C) when it concluded no additional
requirements or setbacks were needed because "ag[riculatural] facilities are not
considered as contributors to TMDL." Appellants contend the Department
therefore failed to meaningfully evaluate the factors set forth in regulations
61-43.200.70(E) to (F) and 61-43.200.140(C) in issuing permits to Broilers and
that the ALC erred by deferring to the Department's interpretation of the
regulations. We agree.
Part 200 of regulation 61-43 governs the permitting of animal facilities.
Regulation 61-43.200.70(F) provided,6
The setback limits given in this part are minimum siting
requirements . . . On a case-by-case basis the
Department may require additional separation distances
applicable to animal facilities . . . The Department shall
evaluate the proposed site including, but not limited to,
6
In May 2021, part 200.70(F) was revised and now provides:
The setback limits given in Part 200 are siting
requirements. The Department shall evaluate the
following factors to determine if any special conditions
are necessary:
1. Latitude and Longitude;
2. Down-wind receptors; and
3. Nutrient Management Plan.
S.C. Code Ann. Regs. 61-43.200.70(F) (Supp. 2021).
the following factors when determining if additional
distances are necessary:
1. Proximity to 100-year floodplain;
2. Geography and soil types on the site;
3. Location in a watershed;
4. Classification or impairment of adjacent waters;
5. Proximity to a State Designated Focus Area;
Outstanding Resource Water; Heritage Corridor;
Historic Preservation District; State Approved
Source Water Protection Area; state or national
park or forest; state or federal research area; and
privately-owned wildlife refuge, park, or trust
property;
6. Proximity to other known point source
discharges and potential nonpoint sources;
7. Slope of the land;
8. Animal manure application method and
aerosols;
9. Runoff prevention;
10. Adjacent groundwater usage;
11. Down-wind receptors; and
12. Aquifer vulnerability.
Regulation 61-43.200.140 provides:
A. There shall be no discharge of pollutants from the
operation into surface [w]aters of the [s]tate (including
ephemeral and intermittent streams). . . .
B. On a case-by-case basis, the Department may impose
additional or more stringent requirements for the
management, handling, treatment, storage, or utilization
of animal manure and other animal by-products.
C. The following cases shall be evaluated for additional
or more stringent requirements:
1. Source water protection. Facilities and manure
utilization areas located within a state approved
source water protection area.
2. 303(d) Impaired Waterbodies List. Facilities and
manure utilization areas located upstream of an
impaired waterbody.
....
(emphases added); see also Regs. 61-43.200.70(E) (providing that, in making
permitting decisions, "[t]he Department shall act on all permits to prevent, so far as
reasonably possible considering relevant standards under state and federal laws, an
increase in pollution of the waters and air of the State from any new or enlarged
sources").
Chaplin, the Department's permit reviewer, testified regarding his review of the
proposed facilities. The record contains the checklist summaries he completed.
Chaplin testified, and the checklist summaries reflect, that in making the permitting
decision, the Department considered the proximity of the projects to the Little
River—an impaired waterbody located downstream from the proposed facilities.
Chaplin testified, however, that agricultural facilities were not considered to
contribute to the TMDL and therefore he determined no additional requirements or
setbacks were needed because Broilers' facilities would not increase pollution of
the waters of the state. As the ALC recognized, the regulations require the
Department to evaluate sensitive areas, including areas on the impaired water
bodies list, to determine if more stringent requirements or setbacks are needed. See
Regs. 61-43.200.140(C)(2). The Department bypassed this case-specific
evaluation by concluding agricultural facilities are not considered to contribute to
the TMDL. This interpretation was arbitrary because the regulations required the
Department to evaluate specific factors to determine whether additional setbacks
were required or additional or more stringent requirements were needed. We
therefore find the ALC erred in deferring to the Department's interpretation. The
Department should have evaluated the factors set forth in regulations
61-43.200.70(F) and 61-43.200.140(C). See Regs. 61-43.200.70(E) ("The
Department shall act on all permits to prevent, so far as reasonably possible, . . . an
increase in pollution of the waters and air of the State from any new or enlarged
sources.").7 Thus, we conclude the ALC erred in finding the Department complied
with the regulatory requirements in issuing the permits.8
Based on the foregoing, we conclude the ALC erred in affirming the Department's
issuance of the agricultural permits when it failed to consider all factors set forth in
part 200 of regulation 61-43 in evaluating Broilers' permit applications. We
therefore reverse and remand to the Department for further evaluation pursuant to
regulation 61-43.
CONCLUSION
For the foregoing reasons, we reverse the ALC's decision to uphold the
Department's issuance of the permits to Broilers and remand to the Department for
further evaluation pursuant to regulations 61-9 and 61-43.
REVERSED AND REMANDED.
KONDUROS and MCDONALD, JJ., concur.
7
We acknowledge Broilers' facilities, as proposed, comply with the minimum
setback requirements. Thus, we question whether Appellants' arguments
concerning additional setbacks are now moot under the current regulatory scheme.
This amendment, however, did not affect Appellants' arguments concerning
whether additional or more stringent requirements were needed under regulation
61-43.200.140(C).
8
We decline to address Appellants' remaining argument the ALC erred in
requiring "evidence proving that existing permitted facilities actually increased
pollution to waters of the State" because our decisions as to the prior issues are
dispositive. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) (stating the court need not address the appellant's
remaining issues when the disposition of a prior issue is dispositive).