CONFINEMENT OPER.

1. UPDATE:LIVESTOCKREGULATIONS & NUISANCE SUITSIOWA PORK CONGRESSJanuary 28 & 29, 2004Eldon McAfee

2. 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)

3. 2002 LEGISLATIONChanged 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

4. 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

5. 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.)

6. 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

7. MANURE 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

8. MANURE 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

9. 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 • DNR: Incidental spillage (on endrows,etc.) while incorporating is surface application

10. MANURE 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

11. MANURE 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

12. MANURE MANAGEMENT PLANSRecordkeeping • Records (must be kept on site unless other arrangements with DNR) • DNR recordkeeping form – not mandatory • Current MMP • Methods and date(s) of app. • Field location and # of acres • Manure application rate • Tile inspection records

13. 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

14. CONSTRUCTION-FORMED STOR.500 & 1,000 animal units • MMP – to DNR & county 30 days before construction • Construction design statement • Meet construction design stds. • Meet required separation distances • No construction in 100 yr. floodplain of navig. river, etc.

15. 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

16. CONSTRUCTION-FORMED STOR.1,000 animal units or more • Master matrix • County must adopt each year • County must apply to all permit applictions • Not required if expansion up to 1666 a.u.’s if site existed on 4/1/02 • Score – total + 3 categories • Legally enforceable - part of permit • Producer selects criteria • Supporting documentation

17. CONSTRUCTION-FORMED STOR.New concrete design standards • Into effect March 24, 2004 • For 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 pits • Min. 5 inch floors – some tolerances • 7 day curing required

18. CONSTRUCTIONConfinement 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

19. 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

20. 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

21. 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

22. 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)

23. NUISANCEBackground • 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?)

24. NUISANCEBackground - 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

25. 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” • 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

26. NUISANCEWhat can happen to the producer in court? • Injunction • Restrict application of manure • Require change in operation • Shut down operation? • Money • Compensatory • Personal discomfort • Loss of property value • Expert witness or plaintiff may testify • University studies • Iowa Supreme Court - if no nuisance – no award for lost property value

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

28. NUISANCEWhat can happen for the producer in court? • Finding of no nuisance • Abuse of process, etc./frivolous litigation • Attorney fees • Very unusual in U.S. court system • Lost profits or bond • Ohio – injunction to stop construction denied – court on appeal overturned trial ct. ruling granting producers lost profits & attorney fees – damages limited to bond

29. 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 - case pending on constitutionality

30. 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 new technology and management practices

31. NUISANCE 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

32. 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

33. 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”

34. 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