Eldon McAfee - Iowa Regulations & Nuisance Case Update

IOWA ENVIRONMENTAL IOWA ENVIRONMENTAL REGULATIONS & NUISANCE REGULATIONS & NUISANCE

CASE UPDATECASE UPDATE

IOWA PORK PRODUCERS ASSOC.IOWA PORK PRODUCERS ASSOC.IOWA PORK CONGRESSIOWA PORK CONGRESS

January 25, 2017 January 25, 2017

Eldon McAfeeEldon McAfeeJulie VyskocilJulie Vyskocil

Erin Herbold SwalwellErin Herbold SwalwellBrick Gentry, PCBrick Gentry, PC

NEW DNR RULESEffective as of Dec. 14, 2016

Definitions:Common management: term “person” replaced

with “individual” to make it clear that one producer cannot use two legal entities to create separate management

Complete application: in which all questions have been completed, signed, all applicable portions and attachments submitted

Public use area: list of lakes as facilities replaced with “cabins . . . , and fishing docks, fishing houses, fishing jetties or fishing piers at lakes”

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Manure on snow or frozen ground: Restored the exemption (expired in 2015) that allowed CFOs without enough manure storage to store manure from Dec. 21 to April 1 under normal circumstances to utilize emergency manure application provisions to apply on snow or frozen ground The amendment allows the exemption only for confinement operations with no manure storage structures constructed after May 26, 2009, the date the legislation went into effect

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Expired construciton permits - animal unit capacity:If site with a construction permit has not completed construction within the required 4 years after the permit is issued, the animal unit capacity in the permit is reduced to what was actually constructed and the DNR will issue a construction permit amendment

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Beginning construction: Filling or compacting soil or soil amendments added to the list of activities that are considered beginning construction Filling or compacting soil or soil amendments cannot be done on a site requiring a construction permit until the permit is issued

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Earthen secondary containment -dry manure CFOs.Not required to meet percolation standards and dike slope and width requirements for liquid manure CFO structure earthen secondary containmentDry manure retained in the secondary containment must be removed and properly disposed within 14 days

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Measurement of separation distances: Rule amended to clarify that when measuring from a CFO structure, the structure does not include areas that do not house animals or store manure or litter (e.g., offices, loading chutes, bulk feed bins, etc.)

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Separation distance waivers: Waivers must be specific to the construction or expansion for which the application is submitted. Future construction or expansion may only be included in the waiver if the waiver includes specific language describing the future construction or expansion

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Concrete standards:Form ties used in concrete wall construction must be nonremovableNo conduits or pipes can be installed through an outside wall below the maximum liquid level of the structure

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Soil sampling:Requirement to sample once every four years for the P Index is replaced with a requirement that samples must be four years old or less. For new MMP, if soil samples are submitted with an original MMP that don’t meet the minimum acres per sample requirement, when samples meeting requirement are submitted within one year a new MMP must be submitted

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Earthen basins with both open feedlot effluent and confinement manure must meet confinement construction standards

The list of lakes used for the major water source separation distance for confinement operations is updated by adding lakes to the list

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Chapter 200A for open feedlot NMPs: Rule amendment extends the provisions for MMP’s using Chapter 200A for dry manure to NMP’s for solid manure from open feedlot operations Open feedlot operations will still need another NMP for liquid manure

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RULES TO IMPLEMENT CODE

2012 Legislation that excluded replacement gilts from the animal units for a swine farrow and gestation operation in determining whether an operation is a “qualified confinement feeding operation” (aerobic manure treatment)

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2013 Legislation that allows a CFO to downsize to become a Small Animal Feeding Operation (SAFO) without rendering a portion of the facilities unusable Rule clarifies that a “mothballed” SAFO is not required to file an annual MMP until the mothballed portion of the SAFO is returned to production and the operation is no longer a SAFO

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2015 legislation that changed regulation of livestock truck washes from industrial to animal feeding operations“Animal truck wash facilities” - washing single-unit trucks, truck-tractors, semitrailers, or trailers used to transport cattle, swine, horses, sheep, chickens, turkeys, or fish

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Allows effluent from a truck wash to be stored in the same structure as manure from a CFO or OFO

Small animal truck washes: Only trucks or trailers owned by the owner of the truck wash and the

average total per day volume of wash water used isn’t more than 2,000 gallons as calculated on a monthly basis

Not required to have a DNR construction permit If use formed storage (concrete, etc.) for the truck wash effluent are

not required to meet separation distances to residences, businesses, churches, schools, public use areas or road rights-of-way

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MANURE APPLICATION – DNR RULESOn snow or frozen ground

Does not apply to:Manure from open feedlot operationsDry manure (can’t be pumped & doesn’t flow

under pressure) (frozen liquid manure does not qualify as dry manure)

Liquid manure from confinement operations using formed storage with less than 500 animal units

Liquid manure injected or incorporated on the same date of application

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No surface application of liquid manure from a confinement operation onSnow covered ground from Dec. 21 to Ap. 1Frozen ground from Feb. 1 to April 1

except in an emergencyFrozen ground

Impermeable to soil moistureDoes not include ground frozen only in top

2” or less Snow covered ground

At least 1” of snow or ½” of ice

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An emergency is when there is an immediate need to apply manure due to unforeseen circumstances beyond the producer’s control Includes, but is not limited to:

natural disasterunusual weather conditions, or equipment or structural failure

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To apply liquid manure on frozen or snow covered ground due to an emergency, a producer must: Telephone DNR field office before application -

2010 rule: caller must give:Owner’s name & facility ID No.Reason for emergency app. & app. DateEstimate of gallons to be applied & fields in

MMP to be applied on Apply the manure on land identified in the MMP –

either in the original MMP or the next updated MMP submitted to DNR after the manure is applied

Apply the manure on land with a P Index 2 or less

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To apply liquid manure on frozen or snow covered ground due to an emergency, a producer must: During manure application and for 2 weeks after, block

any surface tile intake on land in the MMP & down grade Properly manage the manure storage structure

CFOs with manure storage structures constructed after 5/ 26/09 & with no alternatives to manure application must have enough storage for manure from Dec. 21 to April 1under normal circumstances

For CFOs with no manure storage structures constructed after 5/26/09, DNR will accept insufficient manure storage capacity for emergency application notification

For structures built after July 1, 2009, have at least 180 days of storage

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Other considerations: Remember Iowa law requirement that manure

must be applied so as to not cause water pollution Does it comply with EQIP requirements? Will it impact federal NPDES permit requirements? If the operation has a master matrix and took

points for injection or incorporation of manure (item 26(e)), to surface apply because of an emergency producer must obtain written approval for a waiver from a DNR field office

Contact DNR as soon as possible for assistance, even if not required by law

Community and neighbor relations

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DNR – EPA WORKPLAN DNR REGULATION OF CAFOs

DNR must conduct desktop assessments and on-site NPDES inspections at all large CAFOs and desktop assessments and, if necessary, on-site inspections at medium CAFOs within 5 years (Sep. 2018 – approx. 20% each year)

DNR does desktop assessments based on publicly available information, including DNR files and AFO database – Producers, particularly those with medium-sized CFOs, should now make sure that info is correct before DNR does desktop assessment

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DNR prioritized assessments in the following order:AFOs with spills, significant releases, or legally

sufficient complaints involving discharges to waters of the U.S. since Aug. 2008.

Large open feedlot CAFOs and medium sized open feedlot AFOs, including combined AFOs and CFOs

Large CAFO CFOsMedium sized CFOs

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Are on-site inspections required?Large CAFOs

On-site inspections requiredIn conjunction with MMP, earthen basin, or other

routine DNR inspections or reviews.Not necessary if there has been a DNR on-site

inspection after Nov. 1, 2011 & DNR determines facility does not discharge to water of the U.S. The inspection must be functionally equivalent to NPDES on-site inspections, including having written documentation of findings.

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Are on-site inspections required?Medium-sized CFOs

Discharge to water of U.S. in last 5 yearsSignificant release within last 5 years and the

release presented a substantial threat of discharging pollutants to waters of the U.S.

CFO is less than ¼ mile from and draining toward a water of the U.S. and uses uncovered manure or litter storage

Any others that the desktop assessment indicates an on-site inspection is needed

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Are on-site inspections required? Combined (OFO & CFO) medium sized AFOs

OFO portion is less than ¼ mile from and draining toward a water of the U.S. and the OFO portion has more than 300 animal units

Any others that the desktop assessment indicates an on-site inspection is needed

Medium sized OFOsOFO is less than ¼ mile from and draining toward a

water of the U.S. Any others that the desktop assessment indicates an on-

site inspection is needed

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DNR on-site inspections of CFOs for discharges requiring an NPDES permit CFOs that have previously had an accidental

discharge to a water of the U.S.Note: No NPDES permit required if the conditions that caused the discharge have changed or been corrected

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DNR on-site inspections of CFOs for discharges requiring an NPDES permit DNR must contact producer 1 – 3 days

before inspectionProducer to have MMP and other

facility records availableDNR will not enter confinement

buildingsDNR must follow producer’s standard

bio-security policy, if none, must follow DNR bio-security protocol

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Because a DNR inspection will cover DNR rule compliance in addition to NPDES permit requirements, before any NPDES inspection by DNR producers should:Conduct a complete environmental review (env. self-audit under Iowa law) with consultant, advisor, attorney, etc.Follow DNR self-audit rules to report any violations discovered

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IOWA 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

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 competitors31


When notified of inspection, producers should:Ask for copy of desktop assessment

before on-site inspectionDiscuss with DNR whether previous

on-site inspection qualifies for NPDES inspection

Inform DNR of bio-security policyContact consultant, engineer, etc.

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During inspections DNR is to:Review MMP and other recordsAsk about maximum number of head confined at one time over last 12 months Inspect (documentation will include photos):

Manure storage structuresManure stockpilesPerimeter tile – inspection port or outletFeed storageMortality handling areas and compostingAreas downhill of CFODischarges? Photos & samples

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DNR on-site inspections of CFOs for discharges requiring an NPDES permit - after the inspection DNR is to:Complete inspection report within 2 weeksDocument whether operation was discharging to a water of the U.S. Include requirements (violations of rules, if any, and time frames for

correction) and recommendations (suggested items that are not violations but suggestions to improve environmental performance)

Send letter, inspection report and regulatory status form

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SEPARATION DISTANCE WAIVERS

DNR rule:Titleholder land where residence, etc. locatedTitleholder of the land where the CFO structure is locatedUnder such terms and conditions that the parties negotiate (see new DNR rule on future expansion)Must be recorded with county recorder where the residence, etc. is located Other issues:Properly notarizedVerify legal descriptions & legal ownershipConsider nuisance covenant

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ANIMAL CAPACITY Animal weight capacity (AWC) and animal unit capacity (AUC)

If the CFO was constructed before 3/1/03 and not expanded since, use animal weight capacity (AWC) for DNR regulations

If the CFO was constructed before 3/1/03 and expanded since, use AWC for separation distances but AUC for other DNR regs

AWC: the maximum number of animals confined at any time in a confinement operation multiplied by the average weight during a production cycle

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ANIMAL CAPACITY Animal weight capacity and animal unit capacity

If the CFO was constructed after 3/1/03, use animal unit capacity (AUC) for DNR regulations

AUC: maximum number of animals maintained at any one time in a confinement operation multiplied by the animal unit factor Swine animal unit factor

.4 – swine weighing more than 55 pounds.1 – swine weighing between 15 & 55

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ANIMAL CAPACITY Animal unit capacity – double-stocking, over-stocking, etc.

Example: 2,400 hd wean-to-finish site (960 AUC) double stocked with weaned pigs with 2,400 hd moved off-site for finishing

AUC:Nursery phase: 4,800 x .1 = 480Finishing phase: 2,400 x .4 = 960AUC for site is 960

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Must double or over-stocked pigs be moved before any pigs reach 55 pounds? Or before the average weight of the pigs on-site is 55 pounds? Neither because the AUC calculation is based

on the number of pigs weighing more than 55 pounds and the no. weighing 55 pounds or less

Safest approach to ensure compliance may be to remove all overstock pigs before any reach 55 pounds, HOWEVER, AUC law allows some of the pigs to weigh more than 55 pounds if some weigh 55 pounds or less

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ANIMAL CAPACITY Animal unit capacity – double-stocking, etc.

AUC calculation: 2,400 hd wean-to-finish site (960 AUC)double-stocked

No more than 1,600 can weigh more than 55 pounds before the double-stocked one-half must be moved off site (1,600 x .4 = 640 au’s & 3,200 x .1 = 320 au’s for a total of 960 au’s)

Works out to a factor of .333 (i.e., to determine the maximum number of head that can weigh more than 55 pounds before reaching AUC, multiply the total number on-site while double stocked by a factor of .333)

Triple stocked factor is .111 Producers must account for the additional manure from

additional stocking of weaned pigs in their MMP

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Options (other than reducing capacities) if exceeding animal weight or unit capacity: If built below 500 AUC, and now more than 500 AUC but less

than 1,000 AUC: Get MMP and CDS and meet required separation distances To have CDS, must meet DNR concrete standards

If built above 500 AUC but below 1,000 AUC, and now more than 1,000 AUC:

Get construction permit (already have CDS) – must meet matrix if county requires matrix and meet required increased separation distances

If have construction permit but exceeding permit capacities: Get new construction permit with increased capacity – must

meet matrix if county requires matrix and meet required separation distances

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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 CFO’s are one operation when: At least one of the two is constructed after 5/21/98 There is common ownership or management, and They are adjacent; or

Utilize a common area or system for manure disposal (common area or system for manure disposal does not include fields in MMP or anerobic digesters)

Adjacent – CFO’s within:1,250 feet if the combined AUC is <1,0002,500 feet if the combined AUC is >1,000

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To determine required separation distances: Two CFO’s are considered to be one operation when:

At least one of the two is constructed after 3/21/96 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.)

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Common ownership - DNR rule definition:"means the ownership of an animal feeding operation as a sole proprietor, or a majority ownership interest held by a person, in each of two or more animal feeding operations as a joint tenant, tenant in common, shareholder, partner, member, beneficiary, or other equity interest holder. The majority ownership interest is a common ownership interest when it is held directly, indirectly through a spouse or dependent child, or both.”


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Common management - DNR rule def.:"means significant control by an individual of the management of the day-to-day operations of each of two or more confinement feeding operations. “Common management” does not include control over a contract livestock facility by a contractor, as defined in Iowa Code section 202.1.”


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Common management, DNR factors:Who has control over day-to-day decisions regarding animal management?Who decides when and for what reason to contact a veterinarian?Who makes adjustments to feed rations, water, etc.?Who is in charge of the daily management & maintenance (e.g., orders mowing, snow removal, vermin control, feed, or handles carcass disposal, etc.)?


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Common management, DNR factors:Who owns or pays for utilities (e.g., rural or well water, electric and gas service, trash service, etc.)?Who contracts with manure applicators and/or removal facilities?Who is named in or is otherwise the signatory for contracts with the livestock integrator company?


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DES MOINES WATER WORKS LAWSUIT - DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACTCLEAN WATER ACT

Lawsuit“Citizen suit” in U.S. District Court,

Northern District of Iowa, Western Division

Legal precedent? No previous court decisions supporting DMWW’s claim that field tile lines are point sources

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Lawsuit filed by DMWW in 2015; against 10 Drainage Districts (DD’s) in Buena Vista, Sac, and Calhoun counties

Trial set for June 26, 2017; estimated 2 week trial On 9/14/16 the parties presented oral arguments to the

Iowa Supreme Court on the following state law questions and a ruling is expected at any time: Do the DD’s have unqualified immunity from DMWW’s

claims for money damages & DMWW’s claims that the DD’s msut get NPDES permits?

Is Iowa law on DD’s unconstitutional and does the DMWW have a property interest that qualifies for a claim of a Taking under the Iowa Constitution?

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In federal court DMWW:Alleges discharges from DD field tile lines are

discharges from “point sources” without an NPDES permit under the Clean Water Act(Under the CWA point sources are defined as “discernable, confined and discrete conveyances”)

Argues that DD’s qualify as “point sources” due to extensive, unified, and engineered drainage systems

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DMWW’s lawsuit alleges:Corn - soybean crop rotation & lack of

perennial crops coupled with extensive subsurface tile drainage results in excessive nitrates in groundwater that are discharged to surface waters

Surface water runoff has fewer nitrates than tile discharges – “the conveyance of nitrate is almost entirely by groundwater transport”

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AG NUISANCE CASESAG NUISANCE CASES

Odor and flies Unreasonable interference with use and enjoyment of property “normal person standard” Who was “first in time” Fact witnesses

Parties to case Family and friends Independent third parties

Expert witnesses Odor, including monitoring & modeling Livestock and site management Property appraisers

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One ag nuisance case to trial in Iowa in 2015Poweshiek County – 2490 hd swine finishing site – one plaintiff – 1,000 ft. NE - jury verdict on 2/4/15: $525,000 (comprised of $400,000 in personal damages & $125,000 in loss in property value) – judge reduced verdict by $62,500 on post-trial motions (1/2 of loss in property value)On appeal, on 11/23/16 the Iowa Court of Appeals upheld the verdict and ruled:

AFO Nuisance Defense was unconstitutional in this case because facts were similar to Gacke case

Verdict was supported by evidence presented at trial and the amount of the damages was not excessive

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One case to trial in Iowa in 2016 Pauls et. al. v. JBS Live Pork, LLC, Wapello County

– 4,280 hd swine finishing site9 plaintiffs, 4 residences, 1.2 to 2.5 miles away3 week jury trial, jury verdict on 2/29/16No nuisance, $0 awardedAfter trial court ordered plaintiffs to pay

$48,666.61 to JBS for litigation costs and expenses (no attorney fees)

Before trial a $60,000 offer to confess judgment on behalf of the contract grower was accepted by the plaintiffs

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Cases currently pending set for trial in 2017:Poweshiek County – swine finishing – jury trial May 20, 2017Union County – cattle feedyard – jury trial

July 31, 2017 Louisa County – swine finishing – jury trial Sep. 12, 2017Buchanan County – cattle feedyard – jury

trial Nov. 15, 2017

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Cases currently pending set for trial in 2018: Henry County – swine finishing – jury trial Feb.

2018Des Moines County – swine finishing – jury trial July 2018 Wapello County – swine finishing – jury trial was

set for Aug. 15, 2016 but the Iowa Supreme Court granted defendants’ application for interlocutory appeal on the constitutionality of the AFO nuisance defense and the trial has been continued pending that appeal

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AG NUISANCE CASESAG NUISANCE CASESSteps to help to avoid lawsuit Steps to help to avoid lawsuit

Location: separation distance, prevailing winds & topography

Tree buffers: existing trees and fast growing trees planted with slower growing species

Building ventilation management Management of manure storage and application Clean livestock, buildings and lots Mortality handling Overall operational environmental management,

including neighbor awareness, communication and relations

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AG NUISANCE CASESAG NUISANCE CASESProtection for producerProtection for producer

Insurance Standard farm liability policies normally don’t cover – but

producer should always check with their insurance company and/or an attorney

2013 Illinois court decision found that odor from hog manure was not “traditional environmental pollution” and therefore the pollution exclusion in the policy did not exclude coverage for the producer

2014 Wisconsin court decision found that manure that polluted a well was a pollutant under the insurance policy and the pollution exclusion in the policy excluded coverage for the producer

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Insurance Environmental policies available

Coverage provided for odor nuisance claims Coverage for legal and other costs of defenseInsurance is a contract - carefully review the

policy terms to make sure there is coverage for odor nuisance claims

Check with company as to experience with nuisance cases and how the cases will be defended

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Nuisance defense laws All 50 states have some type of law Most favorable court decisions to producer

Indiana - 2014Missouri Supreme Court decision – 4/14/15

2011 Missouri law that established a nuisance defense for Missouri livestock and crop farms limiting lawsuit damages to loss of property value and medical costs is constitutional

Least favorable court decisions to producer Iowa – 1998 and 2004 Supreme Court decisions

finding laws unconstitutional

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Animal Feeding Operations Nuisance Defense, Iowa Code

section 657.11 Iowa Supreme Court in 2004 ruled this section was

unconstitutional under the Iowa Constitution as “unduly

oppressive” in this case where the hog operation was

1,300 ft. north of neighbor who sued and the neighbor had

lived there 22 years before the hog operation was built in

1996

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EPA AIR EMISSIONS REPORTING

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) & Emergency Planning and Community Right-to-Know Act (EPCRA) air release reporting requirements: Qualifying Releases must be reported: more than

100 pounds of H2S or NH3 per 24 hour period Not required at this time if farm was signed up

under EPA Air Compliance Consent Agreement – reporting may be required for these farms once the monitoring study is completed

Exemptions

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EPA AIR EMISSIONS REPORTING

EPA Rule – issued 12/18/08, effective 1/20/09: Exemption to CERCLA & EPCRA air release notification requirements: CERCLA – Any release of a hazardous substance

from animal waste from farms. EPCRA - Any release of a hazardous substance from

animal waste from farms that have fewer than the number of animals in any of the following categories:

700 mature dairy cows1,000 veal calves1,000 cattle (other than above)2,500 swine – 55 pounds or more10,000 swine – less than 55 poundsAlso includes horses, sheep, turkeys, chickens,

and ducks

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EPA AIR EMISSIONS REPORTING3 Step Process

Telephone DNR & Local Emer. Response Committee

Initial written report within 30 days Follow-up written reports:

If significant increaseIncrease in emission levels above the reported

normal range of the continuous releaseStatus report

Filed within 30 days of the one year anniversary of the initial written report

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Iowa Environmental Regulations Handbook

In depth discussion and analysis of environmental regulations, with practical points for analysis and compliance DNR Construction RequirementsDNR Manure Management RequirementsExample separation distance waivers &

manure agreementwww.iowapork.org; Producer Resources;

Iowa Environmental Regulations Handbook

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