Transcript Environmental Workshop

UPDATE:
LIVESTOCK
REGULATIONS &
NUISANCE SUITS
IOWA PORK CONGRESS
January 28 & 29, 2004
Eldon McAfee
CONFINEMENT OPER.
All livestock are confined to areas which
are totally roofed
 Must retain all manure between manure
applications
 No discharge to water of state
 Sufficient storage capacity between
manure application (including
precipitation)

2002 LEGISLATION
Changed to
animal unit capacity from animal weight capacity

AUC is the maximum number of animals
confined at any one time in a confinement
operation multiplied by the animal unit factor
 Animal unit factor – swine



.4 - more than 55 pounds
.1 – 15 to 55 pounds
Consequences (unintended?) of change- DNR
interpretations:


MMP’s - small animal feeding operations
Adjacency – one operation vs. two
CONFINEMENT OPERATIONS
One or two?


To determine if a permit or manure management
plan is required, and if concrete standards apply:
Two CFO’s are considered to be one operation
when:
There is common ownership or management, and
 They are adjacent; or
 Utilize a common area or system for manure
application
Adjacent – CFO’s within:
 1,250 feet if the combined AUC is <1,000
 2,500 feet if the combined AUC is >1,000


CONFINEMENT OPERATIONS
One or two?

To determine required separation distances:

Two CFO’s are considered to be one operation when:
 There is common ownership or management, and
 They are adjacent
Adjacent – CFO’s within:
 1,250 feet if the combined AUC is <3,000 (1,250 –
farrow-gest. or 2,700 farrow fin.)
 1,500 ft. if the combined AUC is >3,000 but
<5,000(1,250 – 2,000– farrow-gest. or 2,700 5,400 farrow fin.)
 2,500 feet if the combined AUC is >5,000 (>2,000–
farrow-gest. or >5,400 farrow fin.)

CONFINEMENT OPERATIONS
One or two?

Common management
 Iowa law (DNR rule):
 Significant control of day-to-day
operations
 DNR interpretation:
 Common management if two producers
contract feed hogs for the same owner if
the owner has the right to control
marketing, feed rations, or vet services
MANURE APPLICATION
All livestock operations


No surface or groundwater pollution
No manure app. within 200 feet of designated
area unless manure injected or incorporated
on same date or perm. vegetation 50 ft.
around water source & no manure on 50 ft.
area (does not apply to ag drainage wells)
 Designated areas are:





Creeks, rivers, lakes, & designated wetlands
Known sinkhole
Cistern, drinking water or abandoned well
Ag drainage well or surface inlet
Lake or farm pond
MANURE APPLICATION
All livestock operations

No manure app. within 800 feet of a “high
quality water resource” unless manure injected
or incorporated on same date or perm.
vegetation 50 ft. around water source & no
manure on 50 ft. area

High quality water resource defined by rule
and found on DNR and IPPA website
MANURE APPLICATION
Confinement operations – liquid manure

Must be injected or incorporated in 24 hrs. if
applied within 750 ft. of residence, bus.,
church, school or public use area (250 ft. if use
low pressure spray irrigation - <25 psi, center
pivot < 9 ft. high)
 Does not apply if waiver from owner of
residence, etc. or operation has less than 500
animal units capacity
 DNR: Incidental spillage (on endrows,etc.)
while incorporating is surface application
MANURE MANAGEMENT PLANS

Annual updates





To DNR and county
DNR required complete MMP’s for first year of
updates
Succeeding years: Short form detailing changes in
MMP or statement that there are no changes
Compliance fee - $.15/a.u. – if contract feeding,
livestock owner required to pay fee
Based on nitrogen


Account for all sources of N - manure, fertilizer, and
legume credit
Establishes limit on amount of N from all sources
MANURE MANAGEMENT PLANS
Phosphorus index


In addition to N requirements
Phased-in based on date of original MMP:
 Before 4/1/02 – P Index required within 4 years
after rules into effect
 Between 4/1/02 & date rules adopted – P Index
required within 2 years after rules into effect
 After rules into effect – must comply with P Index

Proposed DNR rules:



Very low & low – N based MMP
Medium – N based but must show will not exceed
medium category
High & very high – no manure until reduce to med
MANURE MANAGEMENT PLANS
Recordkeeping
Records (must be kept on site unless
other arrangements with DNR)
 DNR recordkeeping form – not
mandatory
 Current MMP
 Methods and date(s) of app.
 Field location and # of acres
 Manure application rate
 Tile inspection records

CONSTRUCTION-FORMED STOR.
500 animal units or less (small AFO)
 Separation
distances from water bodies
& wells
 No construction in 100 yr. floodplain of
navigable river, etc.
 Tile around footings for below ground
storage
CONSTRUCTION-FORMED STOR.
500 & 1,000 animal units
– to DNR & county 30 days
before construction
 Construction design statement
 Meet construction design stds.
 Meet required separation distances
 No construction in 100 yr. floodplain of
navig. river, etc.
 MMP
CONSTRUCTION-FORMED STOR.
1,000 animal units or more







Construction permit application to DNR & county
Engineer required if 3,000 or more a.u.’s (1,250
farrow gest or 2,750 farrow finish)
Construction design statement if no engineer
required
Meet construction design stds.
Separation distances
No construction in 100 yr. floodplain of navig. river,
etc.
Manure management plan
CONSTRUCTION-FORMED STOR.
1,000 animal units or more
 Master
matrix
County must adopt each year
 County must apply to all permit applictions
 Not required if expansion up to 1666 a.u.’s
if site existed on 4/1/02
 Score – total + 3 categories
 Legally enforceable - part of permit
 Producer selects criteria
 Supporting documentation

CONSTRUCTION-FORMED STOR.
New concrete design standards
 Into
effect March 24, 2004
 For structures “constructed” after that
date or completion of construction on a
site where structures have previously
been constructed under a permit
 Key provisions:
No. 4 rebar on 18” in floors of deep pits –
no wire mesh allowed in deep pits
 Min. 5 inch floors – some tolerances
 7 day curing required

CONSTRUCTION
Confinement permits

DNR construction permit




DNR has 60 days to act but can extend another
30 days
County appeal period – 14 days – if county has
adopted the matrix – county board can waive
Required for all earthen manure storage
Other permits


Water withdrawal – if more than 25,000 gal
withdrawn from groundwater
Stormwater discharge – if total area disturbed
during construction is more than one acre
SEPARATION DISTANCES
Air Quality – residences, businesses, etc.



CFO’s with formed manure storage and
more than 500 AUC are subject to
separation distances regardless of whether
a DNR permit is required
Residences, businesses, churches,
schools, public use areas, and road rightsof-way
Public use areas include parks and
cemeteries
SEPARATION DISTANCES
Air Quality – residences, businesses, etc.

Exemptions :





Written waiver from owner of residence, etc.
Expansion of CFO -- use distances in effect at time
CFO constructed (if CFO constructed before any
distances required, distances adopted in 1995
apply)
<2x cap.,<1,000 AUC, and new structure built
further from residence, etc.
Residence, etc. built after CFO began operation
For distance from road rights-of-way:
 Waiver from county or state
SEPARATION DISTANCES
Water Quality – rivers, creeks, etc.

Ag drainage wells & surface inlets, sinkholes,
navigable waters (rivers, etc. from list in DNR
rules), all other waters (creeks,etc.), and
designated wetlands (protected by U.S. Dept.
of Interior or DNR; and owned and managed
by the U.S. government or DNR
 Distances do not apply to:



Farm ponds or private lakes
CFO structures using secondary containment
Wells

Can request variance from DNR
AIR QUALITY STANDARDS
2002 Legislation







Hydrogen sulfide, ammonia and odor
Field study must be conducted
Standards being reconsidered by DNR
following rejection by Legislature in 2003
Levels commonly known to cause a material
and verifiable adverse health effect
No enforcement before 12/1/04
All enforcement at a separated location
Separated location is “a location or object from
which a separation distance is required” by law
(excluding a road)
NUISANCE
Background
Unreasonable interference with a person’s
comfortable use and enjoyment of property
 Lawful business may be a nuisance –
compliance with required separation distances
and other DNR requirements does not mean
an operation cannot be found to be a nuisance
 Factors




Priority in time (who’s first?)
 Given considerable weight
Nature of area (agricultural?)
Nature of activity (substantial interference?)
NUISANCE
Background - Iowa Supreme Court

If normal persons living in the community
would regard the odor as definitely offensive,
seriously annoying or intolerable, then the
interference is significant
 If normal persons in that locality would not be
substantially annoyed or disturbed, then the
interference is not significant, even though the
idiosyncrasies of the plaintiff may make it
unendurable to him or her
NUISANCE
Contract feeding

General rule in Iowa for independent
contractors: Owners of livestock should not be
liable for nuisance unless owner “knows or has
reason to know” nuisance is “likely”
 2003 Minnesota case: Owner of pigs not
dismissed from case
 2000 Alabama case: Tyson Foods, owner of
hogs fed under contract, found liable for
nuisance under legal theory of agency
NUISANCE
What can happen to the producer in court?


Injunction
 Restrict application of manure
 Require change in operation
 Shut down operation?
Money
 Compensatory
 Personal discomfort
 Loss of property value
 Expert witness or plaintiff may testify
 University studies
 Iowa Supreme Court - if no nuisance – no
award for lost property value
NUISANCE
What can happen to the producer in court?

Punitive damages
Create & persistently maintain a nuisance
with reckless disregard for the rights of
others
 2002 Sac County case - $32M


Eliminated by settlement
NUISANCE
What can happen for the producer in court?

Finding of no nuisance

Abuse of process, etc./frivolous litigation


Attorney fees
 Very unusual in U.S. court system
Lost profits or bond

Ohio – injunction to stop construction denied –
court on appeal overturned trial ct. ruling
granting producers lost profits & attorney fees –
damages limited to bond
NUISANCE
Protection for producer

Insurance
Standard farm liability policies normally
don’t cover
 Environmental policies available



Coverage for claims and costs of defense
Nuisance defense
Ag Area Law - 1998 – unconstitutional
 Animal Feeding Operation – 2004 - case
pending on constitutionality

NUISANCE
Steps to help to avoid lawsuit






Know the neighborhood
Meet with neighbors
Sincerely respond to concerns expressed by
neighbors
Meet or exceed all legal requirements
Design & construct operation to minimize
impact on neighbors
Stay current on new technology and
management practices
NUISANCE
Steps to help to avoid lawsuit






Use management practices to minimize odor
Inject or incorporate manure
Apply manure as far from concerned
neighbors as possible
Avoid manure on roads and mud, etc. as much
as possible
Notify neighbors before manure application
Watch wind, temp. & other weather conditions
NUISANCE
Steps to help to avoid lawsuit
Apply manure as few times as possible
 If need more land, consider offering
manure to neighbors
 Consider ownership of neighboring
residences or purchasing & re-selling
with nuisance covenants
 Keep good records

NUISANCE
Steps to help to avoid lawsuit
Inform employees about good neighbor
practices & make sure they follow them
 Require all manure applicators, input
suppliers, livestock haulers, etc. to follow
good neighbor practices
 Avoid the following:

“Nothing will satisfy those people.”
 “If I make changes now, I’ll be admitting
there is a problem”

NUISANCE
All reasonable steps to minimize the
impact of a livestock operation on
neighbors must be taken to improve
chances of avoiding a nuisance lawsuit
or help in legal defense if a nuisance suit
is filed