Journal of the Senate
of the Second Session of the 111th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 9, 1996

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Printed Page 3650 . . . . . Thursday, June 13, 1996
Message from the House

Columbia, S.C., June 12, 1996

Mr. President and Senators:

The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:

H. 3201 -- Rep. Simrill: A BILL TO AMEND SECTION 44-95-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PLACES IN WHICH SMOKING IS PROHIBITED UNDER THE CLEAN INDOOR AIR ACT OF 1990, SO AS TO PROVIDE THAT LOCAL SCHOOL BOARDS MAY MAKE SCHOOL DISTRICT FACILITIES SMOKE FREE AND TO PROVIDE AN EXCEPTION FOR GOVERNMENTAL ENTITIES THAT HAD A NONSMOKING POLICY IN EFFECT BEFORE AUGUST 1, 1990; AND TO DESIGNATE THE PROVISIONS OF THE CLEAN INDOOR AIR ACT AS CHAPTER 95, TITLE 44 OF THE 1976 CODE.
and has ordered the Bill Enrolled for Ratification.

Very respectfully,
Speaker of the House

Received as information.

SUBSTITUTION FOR CONFERENCE

COMMITTEE APPOINTEE

H. 3515 -- Reps. Harrison and Hodges: A BILL TO AMEND SECTION 2-13-190, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DISTRIBUTION OF THE ADVANCE SHEETS OF STATUTES, SO AS TO REVISE THE PERSONS AND ENTITIES TO WHOM THE ADVANCE SHEETS MUST BE DISTRIBUTED; AND TO AMEND SECTION 2-13-240, AS AMENDED, RELATING TO THE DISTRIBUTION OF SETS OF THE CODE OF LAWS OF SOUTH CAROLINA, SO AS TO REVISE THE PERSONS AND ENTITIES TO WHOM THE SETS MUST BE DISTRIBUTED.

Printed Page 3651 . . . . . Thursday, June 13, 1996
The PRESIDENT appointed Senator JACKSON as substitute for the former Senator STILWELL as Conference Committee member/appointee.

Message from the House

Columbia, S.C., June 12, 1996

Mr. President and Senators:

The House respectfully informs your Honorable Body that it has granted Free Conference Powers and appointed Reps. Meacham, Trotter and Riser of the Committee of Free Conference on the part of the House on:

H. 3446 -- Rep. Sharpe: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 46-45-70 SO AS TO PROVIDE REQUIREMENTS FOR THE LOCATION OF AGRICULTURAL FACILITIES AND AGRICULTURAL WASTE DISPOSAL AREAS; TO AMEND SECTION 46-45-30, AS AMENDED, RELATING TO THE CIRCUMSTANCES UNDER WHICH AGRICULTURAL FACILITIES AND OPERATIONS ARE NOT NUISANCES, SO AS TO DELETE THE REQUIREMENT THAT THE FACILITY OR OPERATION MUST BE IN OPERATION FOR ONE YEAR OR MORE; AND TO AMEND SECTION 46-45-60, AS AMENDED, RELATING TO LOCAL ORDINANCES PERTAINING TO AGRICULTURAL FACILITIES AND OPERATIONS, SO AS TO PROVIDE FOR THE CONDITIONS UNDER WHICH RELATED PERMITS MUST NOT BE SUSPENDED, DENIED, OR REVOKED.
Very respectfully,
Speaker of the House

Message from the House

Columbia, S.C., June 12, 1996

Mr. President and Senators:

The House respectfully informs your Honorable Body that it has adopted the report of the Committee of Free Conference on the following Bill:

H. 3446 -- Rep. Sharpe: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 46-45-70 SO AS TO PROVIDE REQUIREMENTS FOR THE LOCATION OF AGRICULTURAL FACILITIES AND AGRICULTURAL WASTE DISPOSAL AREAS; TO AMEND SECTION 46-45-30, AS AMENDED, RELATING TO THE CIRCUMSTANCES UNDER

Printed Page 3652 . . . . . Thursday, June 13, 1996
WHICH AGRICULTURAL FACILITIES AND OPERATIONS ARE NOT NUISANCES, SO AS TO DELETE THE REQUIREMENT THAT THE FACILITY OR OPERATION MUST BE IN OPERATION FOR ONE YEAR OR MORE; AND TO AMEND SECTION 46-45-60, AS AMENDED, RELATING TO LOCAL ORDINANCES PERTAINING TO AGRICULTURAL FACILITIES AND OPERATIONS, SO AS TO PROVIDE FOR THE CONDITIONS UNDER WHICH RELATED PERMITS MUST NOT BE SUSPENDED, DENIED, OR REVOKED.
Very respectfully,
Speaker of the House

H. 3446--FREE CONFERENCE POWERS GRANTED

FREE CONFERENCE COMMITTEE APPOINTED

REPORT OF THE COMMITTEE

OF FREE CONFERENCE ADOPTED

H. 3446 -- Rep. Sharpe: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 46-45-70 SO AS TO PROVIDE REQUIREMENTS FOR THE LOCATION OF AGRICULTURAL FACILITIES AND AGRICULTURAL WASTE DISPOSAL AREAS; TO AMEND SECTION 46-45-30, AS AMENDED, RELATING TO THE CIRCUMSTANCES UNDER WHICH AGRICULTURAL FACILITIES AND OPERATIONS ARE NOT NUISANCES, SO AS TO DELETE THE REQUIREMENT THAT THE FACILITY OR OPERATION MUST BE IN OPERATION FOR ONE YEAR OR MORE; AND TO AMEND SECTION 46-45-60, AS AMENDED, RELATING TO LOCAL ORDINANCES PERTAINING TO AGRICULTURAL FACILITIES AND OPERATIONS, SO AS TO PROVIDE FOR THE CONDITIONS UNDER WHICH RELATED PERMITS MUST NOT BE SUSPENDED, DENIED, OR REVOKED.

On motion of Senator MARTIN, with unanimous consent, the Report of the Committee of Conference was taken up for immediate consideration.

Senators MARTIN and SALEEBY spoke on the report.

H. 3446--Free Conference Powers Granted

Free Conference Committee Appointed

On motion of Senator MARTIN, with unanimous consent, Free Conference Powers were granted.

Printed Page 3653 . . . . . Thursday, June 13, 1996
Whereupon, the PRESIDENT appointed Senators LEVENTIS, MARTIN and LANDER to the Committee of Free Conference on the part of the Senate and a message was sent to the House accordingly.

On motion of Senator MARTIN, the Report of the Committee of Free Conference to H. 3446 was adopted as follows:

H. 3446--Free Conference Report

The General Assembly, Columbia, S.C., June 12, 1996

The COMMITTEE OF FREE CONFERENCE, to whom was referred:

H. 3446 -- Rep. Sharpe: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 46-45-70 SO AS TO PROVIDE REQUIREMENTS FOR THE LOCATION OF AGRICULTURAL FACILITIES AND AGRICULTURAL WASTE DISPOSAL AREAS; TO AMEND SECTION 46-45-30, AS AMENDED, RELATING TO THE CIRCUMSTANCES UNDER WHICH AGRICULTURAL FACILITIES AND OPERATIONS ARE NOT NUISANCES, SO AS TO DELETE THE REQUIREMENT THAT THE FACILITY OR OPERATION MUST BE IN OPERATION FOR ONE YEAR OR MORE; AND TO AMEND SECTION 46-45-60, AS AMENDED, RELATING TO LOCAL ORDINANCES PERTAINING TO AGRICULTURAL FACILITIES AND OPERATIONS, SO AS TO PROVIDE FOR THE CONDITIONS UNDER WHICH RELATED PERMITS MUST NOT BE SUSPENDED, DENIED, OR REVOKED.
Beg leave to report that they have duly and carefully considered the same and recommend:

That the same do pass with the following amendments:

Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:

/SECTION 1. Title 47 of the 1976 Code is amended by adding:

"CHAPTER 20

Confined Swine Feeding Operations

Section 47-20-10. As used in this chapter:

(1) `Agricultural facility' means a lot, building, or structure which is used for the commercial production of swine in an animal feeding operation.

(2) `Animal' means a domesticated animal belonging to the porcine species.

Printed Page 3654 . . . . . Thursday, June 13, 1996
(3) `Animal feeding operation' means an agricultural facility where animals are confined and fed or maintained for a total of forty-five days or more in a twelve-month period and crops, vegetative, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. Structures used for the storage of animal waste from animals in the operation also are part of the animal feeding operation. Two or more animal feeding operations under common ownership or management are considered to be a single animal feeding operation if they are adjacent or utilize a common system for animal waste storage.

(4) `Animal waste' means animal excreta or other commonly associated organic animal wastes including, but not limited to, bedding, litter, feed losses, or water mixed with the waste.

(5) `Annual pollutant loading rate' means the maximum amount of a pollutant that can be applied to a unit area of a waste utilization area during a three hundred sixty-five-day period.

(6) `Cumulative pollutant loading rate' means the maximum amount of a pollutant that can be applied to an area of land.

(7) `Department' means the South Carolina Department of Health and Environmental Control.

(8) `Ephemeral stream' means a stream that flows only in direct response to rainfall or snowmelt in which discrete periods of flow persist no more than twenty-nine consecutive days per event.

(9) `Intermittent stream' means a stream that generally has a defined natural water course which does not flow year-round but flows beyond periods of rainfall or snowmelt.

(10) `Lagoon' means an impoundment used in conjunction with an animal feeding operation, the primary function of which is to store or stabilize, or both, organic wastes, wastewater, and contaminated runoff.

(11) `Vector' means a carrier that is capable of transmitting a pathogen from one organism to another including, but not limited to, flies and other insects, rodents, birds, and vermin.

(12) `Waste storage pond' means a structure used for impounding or storing manure, wastewater, and contaminated runoff 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.

(13) `Waste Utilization area' means land on which animal waste is spread as a fertilizer.

(14) `Watershed' means a drainage area contributing to a river, lake, or stream.

Printed Page 3655 . . . . . Thursday, June 13, 1996
(15) `Waters of the State' means lakes, bays, sounds, ponds, impounding reservoirs, springs, artesian wells, rivers, perennial and navigable streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of the State, and all other bodies of water, natural or artificial, public or private, inland or coastal, fresh or salt, which are wholly or partially within or bordering the State or within its jurisdiction. This definition does not include ephemeral or intermittent streams. This definition includes wetlands as defined in this section.

(16) `Wetlands' means lands that have a predominance of hydric soil, are inundated or saturated by water or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions, and, under normal circumstances, do support a prevalence of hydrophytic vegetation. Normal circumstances refer to the soil and hydrologic conditions that are normally present without regard to whether the vegetation has been removed. Wetlands must be identified through the confirmation of the three wetlands criteria: hydric soil, hydrology, and hydrophytic vegetation. All three criteria must be met for an area to be identified as wetlands.

Section 47-20-20. (A) All siting requirements for animal feeding operations must be measured from property lines.

(B) After June 30, 1996, these setback limits for new or expanded animal feeding operations which utilize a lagoon or a waste storage pond, or both, apply:

(1) For an animal feeding operation with a capacity of 420,000 to 840,000 pounds of normal production animal live weight at any one time, the minimum separation distance required between a lagoon and a waste storage pond and real property owned by another person is 1,000 feet. The minimum separation distance required between an agricultural facility and real property owned by another person is 1000 feet.

(2) For an animal feeding operation with a capacity of 840,001 to 1,260,000 pounds of normal production animal live weight at any one time, the minimum separation distance required between a lagoon and a waste storage pond and real property owned by another person is 1,250 feet. The minimum separation distance required between an agricultural facility and real property owned by another person is 1000 feet.

(3) For an animal feeding operation with a capacity of 1,260,001 to 1,680,000 pounds of normal production live weight at any one time, the minimum separation distance required between a lagoon and a waste storage pond and real property owned by another person is 1,500 feet.

Printed Page 3656 . . . . . Thursday, June 13, 1996
The minimum separation distance required between an agricultural facility and real property owned by another person is 1000 feet.

(4) For animal feeding operations with a capacity of more than 1,680,000 pounds of normal production animal live weight at any one time, the minimum separation distance required between a lagoon and a waste storage pond and real property owned by another person is 1,750 feet. The minimum separation distance between an agricultural facility and real property owned by another person is 1000 feet.

(5) The minimum separation distance between a lagoon and a waste storage pond and a public or private drinking water well is 500 feet.

(6) The minimum separation distance required between a lagoon and a waste storage pond and waters of the State is 1,320 feet (1/4 mile). If the waters of the State are designated Outstanding Resource Waters, Critical Habitat Waters of federally endangered species, or Shellfish Harvesting Waters, the minimum separation distance required between a lagoon and a waste storage pond and waters of the State is 2,640 feet (1/2 mile). A minimum 100-foot vegetative buffer of plants and trees is required. However, if an owner or operator of an animal feeding operation has a Natural Resource Conservation Service employee or a state-certified engineer create a waste management plan design to control the discharge from a failed lagoon so that it will not enter waters of the State and certify that the plan has been implemented as specified, then the minimum separation distance between a lagoon and a waste storage pond and waters of the State is 500 feet.

(7) The minimum separation distance between a lagoon and a waste storage pond constructed of concrete to standards outlined in department regulations and waters of the State is 500 feet. If the waters are designated Outstanding Resource Waters, Critical Habitat Waters of federally endangered species, or Shellfish Harvesting Waters, the minimum separation distance required between a lagoon and a waste storage pond constructed of concrete to standards outlined in department regulations and waters of the State is 1,000 feet. A minimum 100-foot vegetative buffer of plants and trees is required.

(8) If a lagoon or waste storage pond, or both, breaches or fails in any way, the owner or operator of the animal feeding operation immediately must notify the department and the appropriate local government officials.

(C) The minimum separation distance in feet required between a ditch or swale which drains directly into waters of the State and all animal feeding operations is 100 feet.

Printed Page 3657 . . . . . Thursday, June 13, 1996
(D) No new animal feeding operation or expansion of an established animal feeding operation may be located in the 100-year floodplain unless protected from flooding as provided for in regulations of the Federal Emergency Management Agency and the National Flood Insurance Program on Floodplain Management. Such construction or expansion must be certified by the department.

(E) Streams or rivers used as surface intake for potable water supply may not be used as a receiving stream outflow from animal feeding operations, and there may not be any direct water linkage or flood facility drainage linkage between the animal feeding operation and a stream or river utilized as a supply of drinking water unless waste is treated to drinking water quality standards.

(F) The setback limits are minimum siting requirements. The department shall promulgate regulations specifying factors that the department shall evaluate in determining whether additional separation distances are required under certain circumstances. These factors include, at a minimum:

(1) proximity to 100-year flood plain;

(2) soil type;

(3) location in watershed;

(4) nutrient sensitivity of receiving waters;

(5) proximity to a State Designated Focus Area; Outstanding Resource Water; Heritage Corridor; Historic Preservation District; state or national park or forest; state or federal research area; and privately-owned wildlife refuge, park, or trust property;

(6) proximity to other point and nonpoint sources; and

(7) slope of the land.

Section 47-20-30. A separation distance requirement as provided in Section 47-20-20(1)-(4) does not apply to an animal feeding operation which is constructed or expanded, if the titleholder of adjoining land to the animal feeding operation executes a written waiver with the title holder of the land where the animal feeding operation is established or proposed to be located, under terms and conditions that the parties negotiate. The written waiver becomes effective only upon the recording of the waiver in the office of the Register of Mesne Conveyances of the county in which the benefitted land is located. The filed waiver precludes enforcement by the State of Section 47-20-20 (B)(1) - (4) as it relates to the animal feeding operation and to real property owned by another person.

Section 47-20-40. (A) The department shall promulgate regulations relating to land application rates for animal waste for animal feeding operations of a capacity for more than 420,000 pounds of normal

Printed Page 3658 . . . . . Thursday, June 13, 1996
production animal live weight at any one time. These rates must be based on the waste's impact on the environment, animals, and people living in the environment. In developing annual pollutant loading rates and cumulative pollutant loading rates, the department shall consider:

(1) soil type;

(2) type of vegetation growing in land-applied area;

(3) proximity to 100-year flood plain;

(4) location in watershed;

(5) nutrient sensitivity of receiving land and waters;

(6) soil and sediment tests of receiving land and waters;

(7) nutrient, heavy metal, and pollutant content of the waste being applied;

(8) proximity to a State Designated Focus Area; Outstanding Resource Water; Heritage Corridor; Historic Preservation District; state or national park or forest; state or federal research area; and privately owned wildlife refuge, park, or trust property;

(9) proximity to other point and nonpoint sources;

(10) slope of land;

(11) distance to water table or ground water aquifer;

(12) timing of waste application to coincide with vegetative cover growth cycle;

(13) timing of harvest of vegetative cover;

(14) hydraulic loading limitations; and

(15) soil assimilative capacity;

(16) type of vegetative cover and its nutrient uptake ability;

(17) method of land application.

(B) The department shall require calibration of spray irrigation equipment.

(C) Waste must not be applied to or discharged onto land surface when the vertical separation between the waste and the water table is less than 1 1/2 feet.

(D) The department shall ensure that owners or operators adhere to land application rates.

Section 47-20-50. The following application rates shall only apply to animal feeding operations with a capacity of more than 420,000 pounds of normal production animal live weight at any one time.

(A) The minimum separation distance in feet required between a waste utilization area and real property owned by another person on which a residence is located is 200 feet from property lines that are within 1,000 feet of the residence. The 200-foot setback is waived with the consent of

Printed Page 3659 . . . . . Thursday, June 13, 1996
the owner of the residence; however, the owner may not agree to less than 100 feet from the residence.

(B) The minimum separation distance in feet required between a waste utilization area and waters of the State, ditches, and swales that drain directly into waters of the State is 100 feet.

(C) The minimum separation distance in feet required between a waste utilization area and a public and private drinking water well is 200 feet.

Section 47-20-60. (A) The department shall promulgate regulations governing maximum lagoon size and minimum lagoon size, based on the permitted number of animal units to be maintained at the animal feeding operation. However, no single lagoon may exceed four acres.

(B) Lagoons and waste storage ponds for animal feeding operations with a capacity for more than 420,000 pounds of normal production animal live weight at any one time must be lined with a combination of natural and synthetic material which results in a permeability rating equal to or more protective than that required for human waste lagoons.

(C) The owner or operator of an animal feeding operation shall obtain certification from a licensed engineer or an appropriate Natural Resource Conservation Service employee that the operation's lagoon and waste storage pond were designed, constructed, and installed in accordance with regulatory specifications.

(D) Before the construction of a lagoon and a waste storage pond, the owner or operator shall remove all under-drains that exist from previous agricultural operations.

(E) Waste must not be placed directly in or allowed to come into contact with groundwater. Additionally, the minimum separation distance between the lowest point of the lagoon and a waste storage pond and the highest point of the water table beneath the lagoon is 2 feet, unless adequate provisions have been taken and meet the standards established in regulations promulgated by the department.

(F) The department shall conduct a study of alternative technologies for the treatment of animal waste from animal feeding operations and promulgate regulations governing the use of these alternative treatment technologies. Every five years the department shall review changing technologies relating to the treatment of animal waste and promulgate appropriate regulations as needed. The department shall determine which animal feeding operations are required to use aerobic lagoons or other treatment technology.

(G) The department shall consider the cumulative impacts including, but not limited to, impacts from evaporation, storm water, and other potential and actual point and nonpoint sources of pollution runoff, levels

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