UPDATE: LIVESTOCK REGULATIONS AND NUISANCE SUITS IOWA PORK PRODUCERS ASSOC. August 22, 24, 25, 2005

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UPDATE LIVESTOCK REGULATIONS AND NUISANCE SUITS
IOWA PORK PRODUCERS ASSOC.August 22, 24, 25,
2005Eldon McAfee
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ANIMAL CAPACITY Animal weight capacity and
animal unit capacity

• Constructed before 2002 legislation animal
  weight capacity (AWC) - maximum number of animals
  confined at any time in a confinement operation
  multiplied by the average weight during a
  production cycle
• Constructed or expanded after 2002 legislation
  animal unit capacity (AUC) - maximum number of
  animals confined at any one time in a confinement
  operation multiplied by the animal unit factor -
  swine animal unit factors
• .4 - more than 55 pounds, .1 15 to 55

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CONFINEMENT OPERATIONSOne or two?

• To determine if a permit or manure management
  plan is required, and if concrete standards
  apply
• Two CFOs 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 CFOs within
• 1,250 feet if the combined AUC is lt1,000
• 2,500 feet if the combined AUC is gt1,000

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CONFINEMENT OPERATIONSOne or two?

• To determine required separation distances
• Two CFOs are considered to be one operation
  when
• There is common ownership or management, and
• They are adjacent
• Adjacent CFOs within
• 1,250 feet if the combined AUC is lt3,000 for
  finishing or nursery (lt1,250 AUC for farrow-gest.
  or lt2,700 AUC for farrow to fin.)
• 1,500 ft. if the combined AUC is gt3,000 but
  lt5,000 for finishing or nursery (gt1,250 but
  lt2,000 AUC for farrow-gest. or gt2,700 but lt5,400
  AUC for farrow to fin.)
• 2,500 feet if the combined AUC is gt5,000 for
  finishing or nursery (gt2,000 AUC for farrow-gest.
  or gt5,400 AUC for farrow to fin.)

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Adjacency
1,200 head finisher 480 a.u.s
1,300 feet between not adjacent because more
than 1,250 feet and less than 1,000 total animal
units
1,200 head finisher 480 a.u.s
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Adjacency
1,200 head finisher 480 a.u.s
1,300 feet between adjacent because more than
1,000 total animal units and distance is less
than 2,500 feet
2,400 head finisher 960 a.u.s
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Adjacency contract feeding for same owner of
pigs
Producer A 2,400 head finisher 960 a.u.s
2,000 feet
Producer B 1,200 head finisher 480 a.u.s
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CONFINEMENT OPERATIONSOne 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

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CONSTRUCTION-FORMED STOR.500 animal units or
less (small AFO)

• Separation distances from water bodies (500 ft.
  from creek, etc.) wells
• No construction in 100 yr. floodplain of
  navigable river, etc.
• Tile around footings for below ground storage (or
  certification that groundwater table is below the
  structure)
• Stormwater discharge permit if area disturbed
  during construction is more than 1 acre

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CONSTRUCTION-FORMED STOR.500 1,000 animal units

• MMP construction design statement to DNR
  county 30 days before construction
• Note All information on the MMP CDS be
  completed correctly DNR has taken the position
  that the 30 day period does not start if certain
  info is not correct or is missing
• Meet construction design stds. (including tile
  around footings or cert. regarding groundwater
  level)
• Meet required separation distances
• No construction in 100 yr. floodplain of navig.
  river, etc.
• Stormwater discharge permit if area disturbed
  during construction is more than 1 acre
• See www.iowadnr.com/afo/forms.html for forms

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CONSTRUCTION-FORMED STOR.1,000 animal units or
more

• Construction permit app. to DNR county (DNR has
  60 days to act but can extend for add. 30 days)
• Engineer required if 3,000 or more AUC for
  finishers or nursery (gt1,250 AUC farrow gest or
  gt2,750 AUC farrow to finish)
• Const. design statement if no engineer reqd
• Meet construction design stds. (including tile
  around footings or eng. cert. regarding
  groundwater level)
• Meet required separation distances
• No construction in 100 yr. floodplain of navig.
  river
• Manure management plan
• Stormwater discharge permit if area disturbed
  during construction is more than 1 acre
• See www.iowadnr.com/afo/forms.html for forms

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CONSTRUCTION-FORMED STOR.1,000 animal units or
more

• Master matrix
• Not required if expansion up to 1666 a.u.s if
  site existed on 4/1/02 or if county has not
  adopted matrix
• Producer selects criteria county scores DNR
  independently scores if county rejects
• Legally enforceable - part of permit
• Supporting documentation, including design,
  operation, and maintenance plans.
• Note If the necessary supporting documention is
  not included, DNR takes the position that it may
  reject the permit application (even if a county
  passes the matrix) because the matrix is a part
  of the permit
• Also triggers countys 14 day right to appeal
  issuance of permit (county can waive right to
  appeal)

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CONSTRUCTION-FORMED STOR.1,000 animal units or
more

• Construction permit required if any construction
  of a manure storage structure occurs on site
• Permit required even if no physical construction
  or alteration if there is an increase in manure
  volume or a modification in the manner manure is
  stored. Unless increases or modifications are
• Within the limits of a previously issued
  construction permit
• Determined insignificant by DNR (e.g., double
  stocking weaned pigs in a wean-to-finish barn)
• No permit required for repairs or additions to a
  building such as fans, slats, gates, roofs or
  covers
• Plans for repair or modification to a manure
  structure must be submitted to DNR to determine
  if a permit is required

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CONSTRUCTION Stormwater discharge permit

• Required if the total area disturbed is more than
  one acre - activities that further cropping are
  exempt
• To obtain a stormwater discharge permit for
  construction activities
• Publish a form notice in 2 newspapers with the
  largest circulation in the area
• Prepare a pollution prevention plan that includes
  measures to be implemented to control erosion
  during construction and until a permanent ground
  cover is established. This plan must be in place
  at the time the notice of intent is submitted to
  DNR and must be kept on site
• Submit a notice of intent to be covered by the
  state general stormwater discharge permit to DNR
  at least 24 hours before construction begins.
  Attach proof of publication of public notice to
  the notice of intent and filing fee.
• See www.iowadnr.com/afo/forms.html for forms

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SEPARATION DISTANCESResidences, businesses, road
rights of way, etc.

• CFOs 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
• For a worksheet and separation distance tables
  see www.iowadnr.com/afo/files/distreq.pdf

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SEPARATION DISTANCESResidences, businesses, road
rights of way 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)
• lt2x cap.,lt1,000 AUC, and new structure built
  further from residence, etc.
• Residence, etc. built after CFO began operation
• For distance from road rights-of-way
• Can be waived by county or state

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SEPARATION DISTANCESWater bodies rivers,
creeks, wells, 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

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MANURE MANAGEMENT PLANSOriginal (new) filed with
DNR county

• Formed storage
• More than 500 animal units capacity (1,250 head
  of swine weighing more than 55 pounds or 5,000
  head weighing 15 to 55 pounds)
• Constructed or expanded after 5/31/85
• Earthen storage- DNR construction permit
• DNR interpretation Upon transfer of operation
• New MMP
• MMP fees and indemnity fund fees
• Transfers may include family transfers forming
  a corporation
• Transferee loses grandfather status for phase-in
  of P Index

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MANURE MANAGEMENT PLANS

• Annual updates
• To DNR and county
• Short form detailing changes in MMP or statement
  that there are no changes
• May use table values in updates submitted to DNR
  each year then apply manure based actual sample
  values if amend plan before manure applied (do
  not have to submit amended plan to DNR)
• Compliance fee - .15/a.u. if contract feeding,
  livestock owner required to pay fee

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MANURE MANAGEMENT PLANSRecordkeeping

• Records - must be kept on site or at a residence
  or office of the owner or operator within 30
  miles of the site
• DNR recordkeeping form not mandatory, producer
  can use own form
• Current MMP
• Rate, methods and date(s) of app.
• Field location and number of acres

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MANURE MANAGEMENT PLANSRecordkeeping
commercial N P

• For manure applications after 8/25/05, MMP
  records must include dates and application rates
  of commercial N P on fields receiving manure
  including land farmed by someone else where
  manure is applied under an application agreement.
  
• DNR cannot bring an enforcement action for over
  application of N or P on land farmed by someone
  else unless the producer knew or should have
  known that commercial N or P would result in N
  or P exceeding legal limits.

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MANURE MANAGEMENT PLANSRecordkeeping
commercial N P

• Producer must obtain statement from farmer who
  owns, rents, or leases each field receiving
  manure specifying the planned commercial N and P
  fertilizer rates to be applied to each field
• DNR does not currently have a form, but suggests
  the following pounds N (and
• pounds P) are planned to be applied to
  this field, which is pounds of type of
  fertilizer product, such as anhydrous ammonia or
  liquid N

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MANURE MANAGEMENT PLANSDNR policy

• Crop available N during first crop year after
  manure application
• Previously DNR allowed less than 100
• Beginning 8/25/04 new MMPs - use 100 based on
  ISU Pub. Pm-1811
• Can use less than 100 if provide DNR with
  supporting credible information
• Existing operations may continue to use less than
  100 without supporting info until the first P
  Index based MMP is due

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MANURE MANAGEMENT PLANS

• Account for all sources of nitrogen (and
  phosphorus if phosphorus based application rates
  are required)
• Manure, fertilizer, and legume credit
• Establishes limit on amount of nitrogen (and
  phosphorus) from all sources
• Nitrogen in addition to amounts allowed in MMP
  may be applied up to amounts recommended by soil
  or crop nitrogen test for optimum crop yield
• Phosphorus in addition to amounts allowed under P
  based MMP rates may be applied if recommended by
  soil tests and ISU PM-1688

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MANURE MANAGEMENT PLANSPhosphorus index

• In addition to N requirements
• Phased in based on date of original MMP
• Before 4/1/02 P Index required with first
  annual update MMP on or after 8/25/08
• On or after 4/1/02 before 10/25/04 P Index
  required with first annual update MMP on or after
  8/25/06
• On or after 10/25/04 must comply with P Index
• Note DNR has determined that an MMP submitted
  for an expansion of an existing operation is an
  original MMP an MMP for a modification without
  expansion of animal numbers is not an original
  MMP

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COMPOSTING Mortalities DNR rules

• Mortalities must be incorporated into compost
  material within 24 hours of death
• Compost site must be on compacted soil, compacted
  granular aggregates, asphalt, concrete or similar
  relatively impermeable material.
• The site must be accessible during periods of
  inclement weather and prevent contamination of
  surface and groundwater.
• The site cannot be located on a wetland, and must
  be at least 100 feet from private wells, 200 feet
  from public wells, 50 feet from property lines,
  500 feet from inhabited residences (excluding the
  operators) and 100 feet from flowing or
  intermittent streams, lakes or ponds. Composting
  in a 100 yr floodplain must meet DNR floodplain
  requirements.

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COMPOSTING Mortalities DNR rules

• No runoff any water or liquid ponding must be
  corrected within 48 hours
• Odors, dust, noise, litter and vectors which may
  create nuisance conditions must be minimized
• Mortalities cannot be removed until soft tissue
  is fully decomposed
• Finished compost cannot be stored for more than
  18 months
• DNR recommends that finished compost be land
  applied at N or P crop use rates, whichever is
  more limiting
• Mortalities must be composted on the site where
  they were produced unless a composting permit or
  variance is obtained from DNR

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MANURE APPLICATIONAll livestock operations no
pollution

• No manure app. within 200 feet of designated area
  (800 feet if high quality water resource, see DNR
  website for list) 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

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MANURE 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 - lt25 psi, center
  pivot lt 9 ft. high)
• Does not apply if waiver from owner of residence,
  etc. or operation has less than 500 animal units
  capacity
• Note DNR may consider incidental spillage (on
  endrows, etc.) while incorporating as surface
  application

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STOCKPILING MANURE Open feedlots

• New DNR rules apply to all swine, cattle (beef
  and dairy), horse or sheep open lots with less
  than 1,000 animal units of capacity and those
  designated by DNR as a CAFO
• Must land apply as soon as possible but no later
  than 6 months
• Cannot stockpile
• Within 200 ft. (800 ft. from a high quality water
  resource) of a designated area unless a 50 ft.
  permanent grass buffer is established
• In a grass waterway
• Within 200 ft. of downgrade tile intakes

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DNR ENFORCEMENT Inspections

• Iowa Code DNR may enter private property
• With notification of and consent from owner or
  occupant
• Search warrant
• DNR policy enter without permission or a search
  warrant if no one is present to refuse permission
• County representative may accompany DNR
• DNR ( county rep) must follow standard
  biosecurity requirements customarily required by
  the producer to control spread of disease
• If inspection is of a proposed construction site,
  DNR must give at least 24 hours notice

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DNR ENFORCEMENT Environmental self audits

• Initiated by business owner to determine
  environmental compliance
• Benefits
• Immunity from penalties if a violation discovered
  during audit and promptly reported to DNR, before
  DNR investigates
• Includes failure to file an MMP
• Confidentiality of audit report
• No immunity from penalties if
• DNR not properly notified
• Violations are intentional or result in injury to
  persons, property or environment
• Substantial economic benefit giving violator a
  clear economic advantage over competitors

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DNR ENFORCEMENT Reporting manure releases

• Notify DNR state office by calling 515-281-8694.
  Also contact local police or county sheriff
• Must report within 6 hours of onset or discovery
  of release
• Release is an actual, imminent, or probable
  discharge of manure to surface water,
  groundwater, tile line or intake or designated
  area
• Verbal report at time of notification and written
  report within 30 days

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CAFO RULES Discharge permit (NPDES)

• Federal court ruled no discharge permit required
  if the operation does not discharge
• Otherwise, operations with 1,000 animal units or
  more required to have permit by Feb. 2006 but
  EPA revising rules following courts ruling
• Nutrient management plan part of NPDES permit
  requirements in addition to MMP
• DNR has withdrawn its proposed rules awaiting
  guidance from federal EPA as a result of the
  federal court decision
• EPA and DNR considering whether there is
  authority under the Clean Water Act to require a
  discharge permit for a confinement operation
  which has had an accidental manure spill

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AIR QUALITY STANDARDS2002 Iowa Legislation

• Hydrogen sulfide, ammonia and odor
• Field study must be conducted
• Levels commonly known to cause a material and
  verifiable adverse health effect
• 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)
• DNR H2S standard 30 ppb, daily max. 1 hr.
  average, 7 exceedances per year

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AIR QUALITY Dust DNR rule

• Must take reasonable precautions to prevent
  particulate matter from becoming airborne in
  quantities sufficient to create a nuisance
• Exemptions
• Farming operations
• Dust from ordinary travel on unpaved roads
• DNR interpretation Dust from construction
  activities on farm operations not eligible for
  the farming operation exemption

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AIR QUALITY Federal air emissions laws

• Sign up period for Air Emissions Consent
  Agreement closed 8/12/05
• For farms that commence operation or expand after
  the signup deadline, producer may consider taking
  steps to comply with federal air emissions laws
  at the outset
• If an operation will emit more than 100 of
  ammonia or hydrogen sulfide in a 24 hour period,
  an operator must file CERCLA and EPCRA reports
  after the operation begins
• For more information see www.epa.gov/superfund/pro
  grams/er/triggers/haztrigs/crelproc.htm

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NUISANCE Recent and pending cases

• 13 cases filed in 2003, 2 in 04 2 in 05 6
  currently set for trial, 1 grain drying and
  storage case on appeal
• Tasler v. Wilkerson Prestage Stoecker- Dallas
  County - Aug. 2004
• 4,400 head finisher
• 5 plaintiffs (3 residences) all over 1 mile away
• Producer and other neighbors lived closer
• Jury found nuisance - 4,700 total damages - No
  future damages or decrease in property value
• Following jury verdict, judge granted new trial
  based on inconsistent jury verdicts
• After the judges ruling, the parties settled the
  case

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NUISANCE Anticipated nuisance

• Nuisance suit filed before or during construction
  alleging that a nuisance will necessarily
  result and that an injunction should be granted
  prohibiting construction and/or operation
• Courts usually deny in livestock cases where it
  is not certain a nuisance will occur
• In Simpson v. Kollasch, Kossuth Co. district
  court judge denied request for injunction on
  anticipated nuisance because there was no
  evidence that a nuisance would clearly and
  necessarily result from the operation as
  proposed
• Time period for appeal to Iowa Supreme Court is
  still open

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NUISANCE Statute of limitations

• No Iowa Supreme Court decisions on statute of
  limitations for odor nuisance
• For permanent nuisances, once time period
  elapses, lawsuit cannot be filed
• Iowa law 5 years for property damage, 2 years
  for personal injury
• District court rulings have varied. A Polk
  county judge ruled the statute of limitations for
  all nuisance claims was 5 years while a Franklin
  county judge ruled the statute of limitations for
  claims for loss of property value was 5 years and
  claims for personal inconvenience, annoyance and
  discomfort, physical and emotional pain and
  suffering, mental distress and fear of illness
  had a 2 year statute of limitations

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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
• Tasler v. Wilkerson Prestage Stoecker 2004
  Dallas County
• Prestage-Stoecker found to be jointly liable for
  nuisance because it substantially participated
  in the nuisance via contract feeding relationship

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NUISANCE Manure application - landowner liability

• Tetzlaff v. Camp Pangborn- Madison County
• 300 head finisher built in 1970s, Camps bought
  in 1992, Tetzlaffs built new home across road in
  1999
• Court ruled landlord (Pangborns) not liable if
  there is a nuisance from manure application
  because the LL did not have substantial control
  or participation in manure application
• On appeal to the Iowa Supreme Court

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NUISANCE Protection for producer

• Insurance
• Standard farm liability policies normally dont
  cover
• Environmental policies available
• Coverage for claims and costs of defense
• Nuisance defense
• Ag Area Law - 1998 unconstitutional
• Animal Feeding Operation 2004
  unconstitutional if plaintiff precedes livestock
  operation
• Tetzlaff v. Camp Court ruled nuisance defense
  constitutional because manure application had
  been occurring when Tetzlaffs moved in
• Trial scheduled for April 2006

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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 and use new technology and
  management practices to minimize odor

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NUISANCE Steps to help to avoid lawsuit

• Inject or incorporate manure
• Apply manure as far from concerned neighbors as
  possible
• Avoid manure on roads and mud, dust, etc. as much
  as possible
• Notify neighbors before manure application
• Watch wind, temp. other weather conditions when
  applying manure

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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

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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, Ill be admitting there
  is a problem

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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