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					   UPDATE:
  LIVESTOCK
REGULATIONS &
NUISANCE SUITS
 IOWA PORK CONGRESS
   January 28 & 29, 2004
       Eldon McAfee
CONFINEMENT OPER.

 l Alllivestock are confined to areas which
   are totally roofed
 l Must retain all manure between manure
   applications
 l No discharge to water of state
 l Sufficient storage capacity between
   manure application (including
   precipitation)
2002 LEGISLATION                   Changed to
animal unit capacity from animal weight capacity

  l   AUC is the maximum number of animals
      confined at any one time in a confinement
      operation multiplied by the animal unit factor
  l   Animal unit factor – swine
      l   .4 - more than 55 pounds
      l   .1 – 15 to 55 pounds
  l   Consequences (unintended?) of change- DNR
      interpretations:
      l   MMP’s - small animal feeding operations
      l   Adjacency – one operation vs. two
CONFINEMENT OPERATIONS
One or two?

  l To determine if a permit or manure management
    plan is required, and if concrete standards apply:
  l Two CFO’s are considered to be one operation
    when:
      l  There is common ownership or management, and
       l They are adjacent; or
          l Utilize a common area or system for manure
            application
  l   Adjacent – CFO’s within:
          l 1,250 feet if the combined AUC is <1,000
          l 2,500 feet if the combined AUC is >1,000
CONFINEMENT OPERATIONS
One or two?

  l   To determine required separation distances:
  l   Two CFO’s are considered to be one operation when:
       l There is common ownership or management, and
       l They are adjacent
  l   Adjacent – CFO’s within:
       l 1,250 feet if the combined AUC is <3,000 (1,250 –
         farrow-gest. or 2,700 farrow fin.)
       l 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.)
       l 2,500 feet if the combined AUC is >5,000 (>2,000–
         farrow-gest. or >5,400 farrow fin.)
CONFINEMENT OPERATIONS
One or two?

  l   Common management
      l Iowa law (DNR rule):
         l Significant control of day-to-day
           operations
      l DNR interpretation:
         l 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

  l   No surface or groundwater pollution
  l   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)
  l   Designated areas are:
      l   Creeks, rivers, lakes, & designated wetlands
      l   Known sinkhole
      l   Cistern, drinking water or abandoned well
      l   Ag drainage well or surface inlet
      l   Lake or farm pond
MANURE APPLICATION
All livestock operations


  l   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

  l   High quality water resource defined by rule
      and found on DNR and IPPA website
MANURE APPLICATION
Confinement operations – liquid manure

  l   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)
  l   Does not apply if waiver from owner of
      residence, etc. or operation has less than 500
      animal units capacity
  l   DNR: Incidental spillage (on endrows,etc.)
      while incorporating is surface application
MANURE MANAGEMENT PLANS

 l   Annual updates
     l   To DNR and county
     l   DNR required complete MMP’s for first year of
         updates
     l   Succeeding years: Short form detailing changes in
         MMP or statement that there are no changes
     l   Compliance fee - $.15/a.u. – if contract feeding,
         livestock owner required to pay fee
 l   Based on nitrogen
     l   Account for all sources of N - manure, fertilizer, and
         legume credit
     l   Establishes limit on amount of N from all sources
MANURE MANAGEMENT PLANS
Phosphorus index

  l   In addition to N requirements
  l   Phased-in based on date of original MMP:
       l Before 4/1/02 – P Index required within 4 years
         after rules into effect
       l Between 4/1/02 & date rules adopted – P Index
         required within 2 years after rules into effect
       l After rules into effect – must comply with P Index
  l   Proposed DNR rules:
      l   Very low & low – N based MMP
      l   Medium – N based but must show will not exceed
          medium category
      l   High & very high – no manure until reduce to med
MANURE MANAGEMENT PLANS
Recordkeeping

  l Records   (must be kept on site unless
    other arrangements with DNR)
  l DNR recordkeeping form – not
    mandatory
  l Current MMP
  l Methods and date(s) of app.
  l Field location and # of acres
  l Manure application rate
  l Tile inspection records
CONSTRUCTION-FORMED STOR.
500 animal units or less (small AFO)



  l Separation    distances from water bodies
    & wells
  l No construction in 100 yr. floodplain of
    navigable river, etc.
  l Tile around footings for below ground
    storage
CONSTRUCTION-FORMED STOR.
500 & 1,000 animal units

  l MMP   – to DNR & county 30 days
    before construction
  l Construction design statement
  l Meet construction design stds.
  l Meet required separation distances
  l No construction in 100 yr. floodplain of
    navig. river, etc.
CONSTRUCTION-FORMED STOR.
1,000 animal units or more

  l   Construction permit application to DNR & county
  l   Engineer required if 3,000 or more a.u.’s (1,250
      farrow gest or 2,750 farrow finish)
  l   Construction design statement if no engineer
      required
  l   Meet construction design stds.
  l   Separation distances
  l   No construction in 100 yr. floodplain of navig. river,
      etc.
  l   Manure management plan
CONSTRUCTION-FORMED STOR.
1,000 animal units or more

  l Master   matrix
     l County must adopt each year
     l County must apply to all permit applictions
     l Not required if expansion up to 1666 a.u.’s
       if site existed on 4/1/02
     l Score – total + 3 categories
     l Legally enforceable - part of permit
     l Producer selects criteria
     l Supporting documentation
CONSTRUCTION-FORMED STOR.
New concrete design standards

  l Into effect March 24, 2004
  l For structures “constructed” after that
    date or completion of construction on a
    site where structures have previously
    been constructed under a permit
  l Key provisions:
     l No. 4 rebar on 18” in floors of deep pits –
       no wire mesh allowed in deep pits
     l Min. 5 inch floors – some tolerances
     l 7 day curing required
CONSTRUCTION
Confinement permits

  l   DNR construction permit
      l   DNR has 60 days to act but can extend another
          30 days
      l   County appeal period – 14 days – if county has
          adopted the matrix – county board can waive
      l   Required for all earthen manure storage
  l   Other permits
      l   Water withdrawal – if more than 25,000 gal
          withdrawn from groundwater
      l   Stormwater discharge – if total area disturbed
          during construction is more than one acre
SEPARATION DISTANCES
Air Quality – residences, businesses, etc.

  l   CFO’s with formed manure storage and
      more than 500 AUC are subject to
      separation distances regardless of whether
      a DNR permit is required
  l   Residences, businesses, churches,
      schools, public use areas, and road rights-
      of-way
  l   Public use areas include parks and
      cemeteries
SEPARATION DISTANCES
Air Quality – residences, businesses, etc.

  l   Exemptions :
      l   Written waiver from owner of residence, etc.
      l   Expansion of CFO -- use distances in effect at time
          CFO constructed (if CFO constructed before any
          distances required, distances adopted in 1995
          apply)
      l   <2x cap.,<1,000 AUC, and new structure built
          further from residence, etc.
      l   Residence, etc. built after CFO began operation
      l   For distance from road rights-of-way:
            l Waiver from county or state
SEPARATION DISTANCES
Water Quality – rivers, creeks, etc.

  l   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
  l   Distances do not apply to:
      l   Farm ponds or private lakes
      l   CFO structures using secondary containment
  l   Wells
      l   Can request variance from DNR
AIR QUALITY STANDARDS
2002 Legislation

  l   Hydrogen sulfide, ammonia and odor
  l   Field study must be conducted
  l   Standards being reconsidered by DNR
      following rejection by Legislature in 2003
  l   Levels commonly known to cause a material
      and verifiable adverse health effect
  l   No enforcement before 12/1/04
  l   All enforcement at a separated location
  l   Separated location is “a location or object from
      which a separation distance is required” by law
      (excluding a road)
NUISANCE
Background

  l   Unreasonable interference with a person’s
      comfortable use and enjoyment of property
  l   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
  l   Factors
      l   Priority in time (who’s first?)
           l Given considerable weight
      l   Nature of area (agricultural?)
      l   Nature of activity (substantial interference?)
NUISANCE
Background - Iowa Supreme Court

  l   If normal persons living in the community
      would regard the odor as definitely offensive,
      seriously annoying or intolerable, then the
      interference is significant
  l   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

 l   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”
 l   2003 Minnesota case: Owner of pigs not
     dismissed from case
 l   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?

  l   Injunction
       l Restrict application of manure
       l Require change in operation
       l Shut down operation?
  l   Money
       l Compensatory
          l Personal discomfort
          l Loss of property value
              l Expert witness or plaintiff may testify

              l University studies

              l Iowa Supreme Court - if no nuisance – no
                award for lost property value
NUISANCE
What can happen to the producer in court?

  l Punitive      damages
     l Create & persistently maintain a nuisance
       with reckless disregard for the rights of
       others
     l 2002 Sac County case - $32M
         l   Eliminated by settlement
NUISANCE
What can happen for the producer in court?

  l Finding       of no nuisance
     l   Abuse of process, etc./frivolous litigation
          l   Attorney fees
               l Very unusual in U.S. court system

     l   Lost profits or bond
          l   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

 l Insurance
   l Standard farm liability policies normally
     don’t cover
   l Environmental policies available
       l   Coverage for claims and costs of defense
 l Nuisance       defense
   l Ag Area Law - 1998 – unconstitutional
   l Animal Feeding Operation – 2004 - case
     pending on constitutionality
NUISANCE
     Steps to help to avoid lawsuit

 l   Know the neighborhood
 l   Meet with neighbors
 l   Sincerely respond to concerns expressed by
     neighbors
 l   Meet or exceed all legal requirements
 l   Design & construct operation to minimize
     impact on neighbors
 l   Stay current on new technology and
     management practices
NUISANCE
     Steps to help to avoid lawsuit

 l   Use management practices to minimize odor
 l   Inject or incorporate manure
 l   Apply manure as far from concerned
     neighbors as possible
 l   Avoid manure on roads and mud, etc. as much
     as possible
 l   Notify neighbors before manure application
 l   Watch wind, temp. & other weather conditions
NUISANCE
   Steps to help to avoid lawsuit

 l Apply manure as few times as possible
 l If need more land, consider offering
   manure to neighbors
 l Consider ownership of neighboring
   residences or purchasing & re-selling
   with nuisance covenants
 l Keep good records
NUISANCE
   Steps to help to avoid lawsuit

 l Inform employees about good neighbor
   practices & make sure they follow them
 l Require all manure applicators, input
   suppliers, livestock haulers, etc. to follow
   good neighbor practices
 l Avoid the following:
   l “Nothing will satisfy those people.”
   l “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

				
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posted:7/1/2013
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