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

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

ANIMAL CAPACITYAnimal 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

CONFINEMENT OPERATIONSOne 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 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 for finishing or nursery (<1,250 AUC for farrow-gest. or <2,700 AUC for farrow to fin.) • 1,500 ft. if the combined AUC is >3,000 but <5,000 for finishing or nursery (>1,250 but <2,000 AUC for farrow-gest. or >2,700 but <5,400 AUC for farrow to fin.) • 2,500 feet if the combined AUC is >5,000 for finishing or nursery (>2,000 AUC for farrow-gest. or >5,400 AUC for farrow to fin.)

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

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

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

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

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

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

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 (>1,250 AUC farrow gest or >2,750 AUC farrow to finish) • Const. design statement if no engineer req’d • 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

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 county’s 14 day right to appeal issuance of permit (county can waive right to appeal)

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

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

SEPARATION DISTANCESResidences, businesses, road rights of way, 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 • For a worksheet and separation distance tables see: www.iowadnr.com/afo/files/distreq.pdf

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) • <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: • Can be waived by county or state

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

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

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

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

MANURE MANAGEMENT PLANSRecordkeeping – commercial N & P • For manure applications after 8/25/05, MMP records must include dates and application rates ofcommercial 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.

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]

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 MMP’s - 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

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

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

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 operator’s) and 100 feet from flowing or intermittent streams, lakes or ponds. Composting in a 100 yr floodplain must meet DNR floodplain requirements.

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

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

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 - <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 • Note: DNR may consider incidental spillage (on endrows, etc.) while incorporating as surface application

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

DNR ENFORCEMENTInspections • 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

DNR ENFORCEMENTEnvironmental 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

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

CAFO RULESDischarge 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 court’s 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

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

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

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/programs/er/triggers/haztrigs/crelproc.htm

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 judge’s ruling, the parties settled the case

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

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

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

NUISANCE Manure application - landowner liability • Tetzlaff v. Camp & Pangborn- Madison County • 300 head finisher built in 1970’s, 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

NUISANCEProtection 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 – 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

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

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

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

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