Environmental – Administrative – Poultry Facilities – ‘No-Discharge’ Permits 

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The respondent-Department of Health and Environmental Control could not bypass its obligation to consider whether there was any potential for manure, litter or process wastewater from the proposed concentrated animal feeding operations (CAFOs) to be added to the waters of the state by simply issuing the CAFOs “no-discharge” permits which prohibited the CAFOs from discharging pollutants into the waters of the state. The Administrative Law Court erred by deferring to DHEC’s interpretation of regulations 61-9.122 and 61-43 Part 200 of the South Carolina Code. 

We reverse. 

DHEC determined that, because it issued the respondent-chicken farms a no-discharge permit – which prohibits the farms from discharging pollutants into the waters of the state – the farms were not required to either apply for a National Pollutant Discharge Elimination System (NPDES) permit or request a determination that they had no potential to discharge. 

However, the farms are by definition large CAFOs because they propose to house between 162,000 and 237,000 broiler chickens, using a dry manure handling system. Regulation 61-9.122.2 states a CAFO comprises a point source and thus requires an NPDES permit for discharges. 

Under regulation 61-9.122.23(d), large CAFOs are required to apply for an NPDES permit unless they obtain a determination from DHEC pursuant to regulation 61-9.122.23(f) that they have “no potential to discharge.” 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.” 

DHEC’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 DHEC to make a case-specific evaluation. DHEC’s issuance of a no-discharge permit did not satisfy this requirement because DHEC did not specifically consider whether there was no potential for any CAFO manure, litter, or process wastewater from the proposed facilities to be added to the waters of the state “under any circumstance or climactic condition.” 

Simply because the no-discharge permit prohibited the facilities 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, DHEC was required to evaluate the proposed facilities to determine whether there was any potential to discharge. The ALC erred in deferring to DHEC’s interpretation of regulation 61-9 and in finding the facilities had “no potential to discharge” because DHEC issued them no-discharge permits. 

Waterkeeper All., Inc. v. U.S. Envtl. Prot. Agency, 399 F.3d 486 (2d Cir. 2005), does not require a contrary result because that decision was based on the federal Clean Water Act while the South Carolina regulations at issue are based not only on federal NPDES regulations but also on the South Carolina Pollution Control Act, which specifically authorizes the DHEC to “prevent pollution.” 

Finally, the respondent-facilities are near the Little River, an impaired waterbody located downstream from the proposed facilities. The pertinent regulations require DHEC to evaluate sensitive areas, including areas on the impaired water bodies list, to determine if more stringent requirements or setbacks are needed. DHEC bypassed this case-specific evaluation by concluding agricultural facilities are not considered to contribute to the “Total Maximum Daily Load.” This interpretation was arbitrary because the regulations required DHEC to evaluate specific factors to determine whether additional setbacks were required or additional or more stringent requirements were needed. 

The ALC erred in deferring to DHEC’s interpretation. DHEC should have evaluated the factors set forth in regulations 61-43.200.70(F) and 61-43.200.140(C). The ALC erred in finding DHEC complied with the regulatory requirements in issuing the permits. 

Reversed and remanded. 

Blackmon v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 011-028-22, 16 pp.) (James Lockemy, A.J.) Appealed from the Administrative Law Court (Ralph King Anderson, ALJ) Robert Guild for appellants; Mitchell Willoughby, Tracy Colton Green, Michael Smoak Traynham, Sara Volk Martinez and Stephen Philip Hightower for respondents. S.C. App.