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2011-UP-401 - Back Swamp v. SCDHEC

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Back Swamp Community Association, Patricia C. Norwood and Ray Norwood, Jr., William K. Strawn, William E. Stokes, Danny L. Lewis, Sr., Marcus R. Hudson, Brian Bagwell, Harry F. Lyles, Jr., and Dr. Avie J. Rainwater, Appellants,

v.

South Carolina Department of Health and Environmental Control and Haselden Turkey Farm, Respondents.


Appeal From Administrative Law Court
 Ralph K. Anderson, III, Administrative Law Court Judge


Unpublished Opinion No. 2011-UP-401 
Submitted June 1, 2011 – Filed August 22, 2011


AFFIRMED


Robert Guild, of Columbia, for Appellants.

Stephen Philip Hightower, of Columbia, for Respondent South Carolina Department of Health and Environmental Control.

W. Thomas Lavender, Jr., of Columbia, for Respondent Haselden Turkey Farm.

PER CURIAM: Back Swamp Community Association (Back Swamp) appeals the Administrative Law Court's (ALC's) affirmance of the South Carolina Department of Health and Environmental Control's (DHEC's) issuance of a permit to Haselden Farms.  It contends (1) DHEC did not properly follow the permitting process and (2) the issuance of the permit was not supported by the greater weight of the evidence.  We affirm.[1]

1.  Bret Caswell, a DHEC official responsible for reviewing the Haselden application, testified that all procedures were followed with respect to the permitting process.  The site was preliminarily inspected and approved by the DHEC Groundwater Division.  All public notice requirements were provided and opponents of the permit were given the opportunity to comment either in writing or at a public meeting.  The appellate court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact and will only reverse or modify the decision if the decision is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record.  S.C. Code Ann. § 1-23-380(5) (Supp. 2010).  Therefore, we affirm the ALC's determination that DHEC properly conducted the application process.

2.  Back Swamp, consisting of neighboring landowners, opposed the issuance of the permit.  At trial, its members testified as to how the operation of the turkey farm would negatively impact the environment and their health.  They also presented the expert testimony of Dr. Barry Ryan, who opined that DHEC should not have issued the permit as is, but should have required additional setbacks or other measures to further limit the impact of the turkey farm on the surrounding community. 

The record shows after reviewing a medical evaluation packet, Dr. Lena Bretous, a medical epidemiologist employed by DHEC, indicated the site would be appropriate as proposed.  State Epidemiologist, Dr. Jerry Gibson, supported Dr. Bretous's evaluation.  Steven Smutz, a civil engineer with DHEC in the modeling section of the Bureau of Air, reviewed the Haselden application and testified the majority of emissions generated from a turkey farm are not regulated under state or federal standards.[2]  William McMeekin, a state-licensed engineer and former state employee, testified he performed soil borings at the proposed animal burial site on the property and augered seven feet deep without finding water or soil discoloration, which would indicate the seasonal high of the water table in that area.  Dr. Ryan testified that if the borings were accurate, the buffer of two feet between the bottom of the burial pit and the water table should be sufficient to prevent groundwater contamination. 

DHEC permit reviewers are to act on 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."  24A S.C. Code Ann. Regs. § 61-43.200.70(E) (Supp. 2010).  Accordingly, we affirm the ALC's order upholding DHEC's issuance of the permit to Haselden Farms.

AFFIRMED.

SHORT, KONDUROS, and GEATHERS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.  

[2] Hydrogen sulfide is a potential emission that is regulated, but both Smutz and Dr. Ryan testified the likelihood of hydrogen sulfide being produced in a dry facility such as the one proposed was very low.