Download - UPDATE: LIVESTOCK REGULATIONS & NUISANCE SUITS IOWA PORK CONGRESS January 28 & 29, 2004 Eldon McAfee
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.)
CONFINEMENT OPERATIONSOne or two?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
CONFINEMENT OPERATIONSOne or two?CONFINEMENT OPERATIONSOne or two?
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
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
NUISANCENUISANCESteps to help to avoid lawsuit Steps to help to avoid lawsuit
NUISANCENUISANCESteps to help to avoid lawsuit Steps to help to avoid lawsuit
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
NUISANCENUISANCESteps to help to avoid lawsuit Steps to help to avoid lawsuit
NUISANCENUISANCESteps to help to avoid lawsuit 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”