CONFINEMENT OPER

UPDATE:UPDATE:LIVESTOCKLIVESTOCK

REGULATIONS & REGULATIONS & NUISANCE SUITSNUISANCE SUITS

IOWA PORK CONGRESSIOWA PORK CONGRESSJanuary 28 & 29, 2004January 28 & 29, 2004

Eldon McAfeeEldon McAfee

UPDATE:UPDATE:LIVESTOCKLIVESTOCK

REGULATIONS & REGULATIONS & NUISANCE SUITSNUISANCE SUITS

IOWA PORK CONGRESSIOWA PORK CONGRESSJanuary 28 & 29, 2004January 28 & 29, 2004

Eldon McAfeeEldon McAfee

CONFINEMENT OPER.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 capacity2002 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

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 <1,0002,500 feet if the combined AUC is >1,000

CONFINEMENT OPERATIONSOne or two?CONFINEMENT OPERATIONSOne 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.)


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 APPLICATIONAll livestock operationsMANURE APPLICATIONAll 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 APPLICATIONAll livestock operationsMANURE APPLICATIONAll 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 APPLICATIONConfinement operations – liquid manureMANURE APPLICATIONConfinement 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 PLANSMANURE 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 PLANSPhosphorus indexMANURE MANAGEMENT PLANSPhosphorus 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 PLANSRecordkeepingMANURE MANAGEMENT PLANSRecordkeeping

Records (must be kept on site unless other arrangements with DNR)

DNR recordkeeping form – not mandatory

Current MMPMethods and date(s) of app.Field location and # of acresManure application rateTile 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

MMP – to DNR & county 30 days before construction

Construction design statementMeet construction design stds.Meet required separation distancesNo construction in 100 yr. floodplain of

navig. river, etc.

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 yearCounty must apply to all permit applictionsNot required if expansion up to 1666 a.u.’s

if site existed on 4/1/02Score – total + 3 categoriesLegally enforceable - part of permitProducer selects criteriaSupporting documentation

CONSTRUCTION-FORMED STOR.New concrete design standards

Into effect March 24, 2004For 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 pitsMin. 5 inch floors – some tolerances7 day curing required

CONSTRUCTIONCONSTRUCTIONConfinement permitsConfinement 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 DISTANCESAir Quality – residences, businesses, etc.SEPARATION DISTANCESAir 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 rights-of-way

Public use areas include parks and cemeteries

SEPARATION DISTANCESAir Quality – residences, businesses, etc.SEPARATION DISTANCESAir 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 DISTANCESWater Quality – rivers, creeks, etc.SEPARATION DISTANCESWater 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 STANDARDS2002 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)

NUISANCENUISANCEBackgroundBackground

NUISANCENUISANCEBackgroundBackground

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?)

NUISANCENUISANCEBackground - Iowa Supreme CourtBackground - Iowa Supreme Court

NUISANCENUISANCEBackground - Iowa Supreme CourtBackground - 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

NUISANCENUISANCEContract feedingContract feeding

NUISANCENUISANCEContract feedingContract 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

NUISANCENUISANCEWhat can happen to the producer in court?What can happen to the producer in court?NUISANCENUISANCEWhat can happen to the producer in court?What can happen to the producer in court?

Injunction Restrict application of manure Require change in operation Shut down operation?

Money Compensatory

Personal discomfortLoss of property value

Expert witness or plaintiff may testify University studies Iowa Supreme Court - if no nuisance – no

award for lost property value

NUISANCENUISANCEWhat can happen to the producer in court?What can happen to the producer in court?

NUISANCENUISANCEWhat can happen to the producer in court?What can happen to the producer in court?

Punitive damagesCreate & persistently maintain a nuisance

with reckless disregard for the rights of others

2002 Sac County case - $32MEliminated by settlement

NUISANCENUISANCEWhat can happen What can happen forfor the producer in court? the producer in court?

NUISANCENUISANCEWhat can happen What can happen forfor the producer in court? the producer in court?

Finding of no nuisanceAbuse of process, etc./frivolous litigation

Attorney fees Very unusual in U.S. court system

Lost profits or bondOhio – injunction to stop construction denied –

court on appeal overturned trial ct. ruling granting producers lost profits & attorney fees – damages limited to bond

NUISANCENUISANCEProtection for producerProtection for producer

NUISANCENUISANCEProtection for producerProtection for producer

InsuranceStandard farm liability policies normally

don’t coverEnvironmental policies available

Coverage for claims and costs of defense

Nuisance defenseAg Area Law - 1998 – unconstitutionalAnimal Feeding Operation – 2004 - case

pending on constitutionality

NUISANCESteps to help to avoid lawsuit

NUISANCESteps 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

NUISANCENUISANCESteps to help to avoid lawsuit 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



Apply manure as few times as possibleIf need more land, consider offering

manure to neighborsConsider ownership of neighboring

residences or purchasing & re-selling with nuisance covenants

Keep good records



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”

NUISANCENUISANCENUISANCENUISANCE

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

Documents

CONFINEMENT OPER