environmental regulations & nuisance case update€¦ · planned to begin (recommendation but...

ENVIRONMENTAL REGULATIONS & NUISANCE

CASE UPDATE

IOWA PORK PRODUCERS ASSOCIATION

September 10, 2010

Eldon McAfee

ANIMAL CAPACITY Animal weight

capacity and animal unit capacity

Constructed before 2002 legislation – 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 – AUC - 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

AFO – CFO & OFO

Confinement Feeding Operation (CFO)

An AFO in which animals are confined to areas which are totally roofed

Open Feedlot Operation (OFO)

Unroofed or partially roofed AFO if crop, vegetation, or forage growth or residue cover is not maintained as part of the AFO while the animals are confined

CFO cannot discharge under Iowa law

PARTIALLY ROOFED AFO

New DNR rule definition of partially roofed AFO to qualify as OFO:

Animals must have unrestricted access between inside and outside areas

Unroofed area must be at least 10% of square footage inside area

If these requirements not met, the AFO is a CFO even though animals are not confined to areas which are totally roofed

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: 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 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 OPERATIONS One or two?

New DNR rule: common area or system for manure disposal:

Includes same manure storage, confinement structure, stockpile, permanent manure transfer piping system or center pivot.

Does not include:

Manure application fields in MMP

Anaerobic digesters


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.)


Two OFO’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 open feedlot effluent application

Adjacent – OFO’s are adjacent if:

Less than 1,250 feet apart; and

At least one open feedlot operation structure is constructed on or after July 17, 2002.

OPEN FEEDLOT OPERATIONS One or two?

Common ownership: sole or at least a majority

ownership interest

Includes ownership by spouse or dependent

child

Common management

Significant control of day-to-day operations

Does not include control by an owner of animals being fed in two or more CFO’s or OFO’s

New DNR rule changed previous DNR interpretation for CFO’s

CFO’S & OFO’S One or two?

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. (if on alluvial soils, must get DNR Order that site is not in 100 yr. floodplain)

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

DNR construction approval letter – new rule: expires if construction not begun within 1 year or completed within 4 years

Meet construction design stds. (including tile around footings or cert. regarding groundwater level)

CONSTRUCTION-FORMED STOR. 500 & 1,000 animal units

Meet required separation distances

No construction in 100 yr. floodplain of navig. river, etc. (if on alluvial soils, must get DNR Order that site is not in 100 yr. floodplain)

Karst soil determination

Info on other CFO’s under common ownership or management within 2500 ft.

Stormwater discharge permit if area disturbed during construction is more than 1 acre

See www.iowadnr.com/afo/forms.html for forms

http://www.iowadnr.com/afo/forms.html

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)

New DNR rule: Permit application should be submitted 120 days before construction is planned to begin (recommendation but not required)

New DNR rule: No permit for 120 days after completion of construction without a permit

Engineer required if 3,000 or more a.u.’s (1,250 a.u.’s for farrow gest or 2,750 a.u.’s for 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

MMP & stormwater discharge permit

New rule: any changes to design during construction must be DNR approved first



CONSTRUCTION-FORMED STOR. 1,000 animal units or more - matrix

Not required if expansion up to 1666 a.u.’s if site constructed as of 4/1/02 or if county has not adopted matrix

Supporting documentation, including design, operation, and maintenance plans. If the necessary supporting documentation

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

If a county does not pass the matrix, DNR independently scores the matrix, including items the county gave a passing score

CONSTRUCTION-FORMED STOR. 1,000 animal units or more - matrix

DNR interpretation of requirements upon independent review following county denial: Requirements for design, operation &

maintenance plans for: landscaping composting formed storage truck turnaround feeding & watering systems to reduce

manure volume

CONSTRUCTION-FORMED STOR. 1,000 animal units or more - permit

DNR rules require the owner of the site or the structures to be the permit applicant

New rule: Owner means person who has legal or equitable title

Purchase contract contingent upon permit being issued should qualify the permit applicant as an owner as an equitable titleholder


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 const. 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

EARTHEN MANURE STORAGE

New DNR rule: need soils report with permit application

New DNR rule: Must control berm erosion with perennial grass on outer, top and inner (to freeboard line) berm areas unless covered by concrete, riprap synthetic liner or similar erosion control materials or measures

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.



SEPARATION DISTANCES Residences, 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-all new or expanding CFO’s with earthen storage are subject to separation distances

Residences, businesses, churches, schools, public use areas, and road rights-of-way

Public use areas include parks and cemeteries (pioneer cemeteries (6 or fewer burials in the last 50 years) are exempt)

For a worksheet and separation distance tables see: www.iowadnr.com/afo/files/distreq.pdf

http://www.iowadnr.com/afo/files/distreq.pdf

SEPARATION DISTANCES Residences, businesses, road rights of way etc.

Exemptions: Written waiver from owner of residence, etc. –

must be recorded with county recorder Also may want to include:

Covenant-not-to sue for nuisance Approval by residence mortgage holder

Expansion of CFO -- use distances in effect at time CFO constructed (if CFO constructed before any distances required, 1995-1999 distances apply)

<2x cap.,<1,000 AUC, and new structure built further from residence, etc.

Residence, etc. built after CFO began operation

SEPARATION DISTANCES Road rights of way

100 feet from the right-of-way Exemptions:

Small animal feeding operations (500 or less animal units)

Waiver from state or county

SEPARATION DISTANCES Water bodies – rivers, creeks, wells, etc.

1,000 feet - Ag drainage wells, sinkholes, navigable waters (major water sources -- rivers, etc. from list in DNR rules – new list goes into effect on 4/16/06)

500 feet - Surface inlets to ag drainage wells & water sources (creeks,etc.) – DNR policy on watersource

2,500 feet - Designated wetlands (designated as protected by U.S. Dept. of Interior or DNR; and owned and managed by the U.S. government or DNR

Wells – formed manure storage

200 feet from a shallow well

100 feet from a deep well

Can request variance from DNR

SEPARATION DISTANCES Water bodies – rivers, creeks, wetlands, etc.

Distances for water sources, major water sources or designated wetlands do not apply to: Farm ponds – defined as body of water:

Wholly on the lands of a single owner, or group of joint owners

No connection to public waters Less than 10 surface acres

Privately owned lakes – defined as any lake: Not subject to federal control covering navigation Owned by an individual, group of individuals, or

a nonprofit corporation Which is not open to the use of the general

public but is used exclusively by the owners and their personal guests.


Distances for water sources, major water sources or

designated wetlands do not apply to:

CFO structures using secondary containment

barriers

Contain greater of 120% of manure stored

above grade or 50% of manure below ground

Can be concrete and/or earth

Earthen barriers must meet percolation & design

standards


Distances for water sources, major water sources or designated wetlands do not apply to: CFO structures using secondary containment

barriers New DNR rule:

Can have relief outlet or valve – must remain closed & any liquid due to overflow must be land applied per MMP

Must submit site-specific plan with permit app. or CDS if no permit required

Liquid manure: barrier must be designed by an engineer or NRCS

Dry manure storage: No on-site stockpiling outside of structure Contain 10% of manure stored Percolation & design standards do not

apply

MANURE MANAGEMENT PLANS Original (new) filed with DNR & county

Formed storage

More than 500 animal units capacity (

Constructed or expanded after 5/31/85

Earthen storage- DNR construction permit

New DNR rule: For MMP’s after Sept. 15, “dominant critical area” determined under NRCS Tech. Note 29

New DNR rule: Upon transfer of operation

New MMP within 60 days – can use existing MMP for manure application until then

MMP fees and indemnity fund fees

Family transfers & forming a corporation - check with DNR to see if new MMP needed

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 PLANS Recordkeeping

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

Get records immediately (or as soon as possible) from the manure applicator

MANURE MANAGEMENT PLANS Recordkeeping – commercial N & P

For manure applications after 8/25/05, MMP records must include dates and application rates of commercial 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 PLANS Recordkeeping – 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 form, but can use own form for

individual situations

MANURE MANAGEMENT PLANS Phosphorus index –DNR rules

Must be calculated every 4 years, more often if PI inputs change - submitted to DNR as annual update

P Index categories (not the same as soil test):

Very low (0-1)- N based MMP

Low (>1-2) N based MMP

Medium (>2-5)

Manure may be applied at N based rates if current and/or planned soil conservation and P mgt practices predict the PI will not exceed the medium category at the next PI determination

Manure not applied in excess of 2 times the P removed over crop rotation

If follow P based rates in these categories, soil samples can cover up to 20 acres


P Index categories (not the same as soil test): High (>5-15)

(>5-10) Until 12/31/08, manure may be applied at P based rates if practices adopted to reduce the PI to medium for the next determination (intent – be able to continue applying

manure while implementing practices) (>10-15) no manure application

(intent – no additional manure applications until practices implemented to reduce PI to medium)

Very high – no manure application


Phosphorus based rates:

P applications over the crop schedule limited to crop removal unless additional P recommended by soil tests

P from a manure application cannot exceed crop removal from the next 4 planned crops

P crop removal = optimum yield X P removal rate for each crop (.375 lbs. P/bu. of corn, or other credible data)


Fields – PI calculated for each field. Fields must be contiguous-not separated by a road, river, creek, etc.

Soil type to calculate PI must be most erosive soil map unit that is at least 10% of the total field

Soil sampling - Every 4 years Samples for each 10 acres (20 acres if PI vl, l, or m

and apply manure on P rates)(fields up to 15 acres – one sample)

Samples averaged for soil test level of a field Existing soil tests may be used if they meet DNR

requirements MMPs for construction, if previous soil tests are

less than 4 years old and don’t meet requirements, they may still be used if new soil tests meeting DNR requirements are taken within one year after the MMP is approved

MANURE APPLICATOR CERTIF.

New rule: Confinement site applicator who misses course one year must pass exam to remain certified

Commercial manure service: in the business of transporting, handling, storing, or applying manure for a fee

DNR interpretation: If a producer applies the producer’s manure (from a site that requires applicator certification) to someone else’s land and receives money (for either the manure or the application), then the producer must be certified as a commercial applicator instead of as a confinement site manure applicator

COMPOSTING MORTALITIES

500 ft. from a residence other than the producer’s

Not in a wetland

100 ft. from private well, 200 ft. from public well

50 ft. from property lines

100 ft. from flowing or intermittent streams, lakes or ponds

Minimize formation of leachate & prevent runoff into and out of the compost facility

Minimize ponding, any ponding that occurs must be corrected within 48 hours

All weather surface of compacted soil, compacted granular aggregates, asphalt, concrete or other relatively impermeable material


Minimize odors, dust, noise, litter and vectors which may cause nuisance conditions or health hazard

Storage of finished compost for no more than 18 months

Mortalities may be composted off-site at another livestock operation without a permit – no restriction on distance and do not have to be from the same owner or operator

Mortalities that died from infectious disease that can be spread by scavengers or insects or that died from a reportable disease must be disposed of under Iowa Dept. of Ag requirements


Transportation vehicles must be constructed to prevent release of mortality contaminated materials

In transporting, the most direct haul route that avoids biosecurity risks must be used

Compost facilities must be designed for average annual death loss from all sites using the facility, raw materials, and finished compost

Mortalities from catastrophic death losses (fire or power outage) cannot be composted until DNR approves


Mortalities must be in the compost within 24 hours

To control leachate, odors and animal scavenging, must have 12 inch bulking agent cover, 6-12 inches between carcasses, and 12-24 inch base depending on size and number of mortalities

Compost cannot be removed until soft tissue is fully decomposed

Compost (including bones) must be applied to cropland to minimize runoff into waters of the state

Application of compost to other than cropland needs DNR approval (pasture?)

DNR policy: If mortalities are composted in manure, the compost pile must also meet manure storage structure requirements

EPA CAFO RULE

CAFO – 2,500 head of swine over 55 lbs, 10,000 swine less than 55

CAFO must obtain a federal discharge permit (NPDES) if the CAFO discharges or proposes to discharge

CAFO discharges or proposes to discharge if it is designed, constructed, operated, or maintained such that a discharge will occur

Iowa confinement operations cannot discharge by law

Without an NPDES permit, can be no discharge – with an NPDES permit, can discharge from greater than 25-year, 24 hour storm event

EPA CAFO RULE

A discharge also includes discharges from land application

However, ag stormwater discharges do not require an NPDES permit

An ag stormwater discharge – CAFO must apply manure in compliance with a site specific nutrient management plan

This plan is not required to be submitted to EPA or DNR, but must be kept with records on site or “at a nearby office”

EPA CAFO RULE

Is NPDES permit needed for an

“accidental discharge”?

If the cause of an accidental discharge that

has occurred in the past has been changed

or corrected, the CAFO would not be

considered to discharge or propose to

discharge and an NPDES permit would not

be required due to the accidental discharge

EPA CAFO RULE

No Discharge Certification Option Voluntary

For CAFOs that do not discharge or propose to discharge

Why do it?

If discharge occurs, penalties for discharge but not for failure to have an NPDES permit

If discharge occurs without NPDES permit or voluntary certification option, CAFO has burden to prove it did not discharge or propose to discharge

EPA CAFO RULE

No Discharge Certification Option

EPA and DNR do not review the

certification

Requirements for certification are:

Technical evaluation

Signed certification statement

Statement submitted to DNR

EPA CAFO RULE

SETTLEMENT AGREEMENT

Announced May 26, 2010

With Sierra Club, NRDC, Waterkeepers

EPA agreed to:

Issue CAFO Guidance by 5.28.10

Propose new rule within 1 year

requiring all CAFO’s “whether they

discharge or propose to discharge” to

submit the following detailed info to

EPA:

EPA CAFO RULE


Name & address of CAFO owner &

operator & owner of animals

Location of the CAFO

Type of facility & no. & type of animals

Land application acreage & if has NMP

Whether CAFO transfers manure off-site

& if so, the quantity transferred

Whether CAFO has applied for NPDES

permit

EPA CAFO RULE


EPA also agreed to:

Require this info to be submitted every 5 years, or

explain why not

Take final action on the proposed rule within 2

years (May 26, 2012)

Release the info to the public, except confidential

business info

Accept a petition for rulemaking (requiring NPDES

permits) from Sierra Club, NRDC & Waterkeepers if

the orgs believe the info shows there are categories

of CAFO’s that “presumptively discharge”

Pay $95,000 in attorney fees & costs

EPA CAFO RULE GUIDANCE

Objective assessment:

CAFO’s conduct objective assessment to

determine if they discharge or propose to

discharge

Ongoing process

Of animal confinement, feed storage,

manure storage, confinement house

ventilation exhaust, land application, & any

pathways for pollutants to reach waters of

U.S.


Objective assessment:

Factors to be assessed include:

Proximity to waters of U.S.

Precipitation

Discharge history

Waste storage

Mortality management

Equipment maintenance protocols

Drainage

Nutrient management planning


Confinement barns – exhaust

Whether “pollutants” exhausted by ventilation fans

will then be transported in precipitation runoff to

waters of the U.S. If so, EPA takes the position that

the facility is proposing to discharge and must apply

for an NPDES permit

However, an NPDES permit is required only if there

is an actual discharge of pollutants to waters of the

U.S. So any exhaust fan pollutants that may come

in contact with precipitation runoff from around

confinement buildings must enter a water of the

U.S. for an NPDES permit to be required


Other key points:

Mortalities-protect from precip or runoff controlled

Manure app on frozen/snow covered ground:

Discharges are non-exempt land application

discharge, even if app complies with state law

Considered proposing to discharge if CAFO is

operated such that a discharge will occur

Factors specific to swine :

Maintenance of hoses for land application

Pipe or hose ruptures or overflows in shallow pit

to outside manure storage systems

CAFO - COMBINE CFO/OFO

EPA rules have never distinguished between OFO’s and CFO’s

Since 2003 when EPA rules established separate categories of animals, EPA rules have required OFO & CFO animals in same category to be added together

Iowa law has always kept OFO & CFO’s separate for purposes of Iowa law

April 2008 - Iowa law incorporated EPA rules combining OFO & CFO animals for NPDES & allowed until 12/31/08 to submit NPDES application

CAFO/NPDES permit requirements: OFO & CFO (within 1,250 feet) animals in same category at an AFO are added together

CAFO EPA - One AFO or two?

2 or more AFO’s under common ownership are one AFO if:

They adjoin; or

They use a common area or system for manure application

EPA: OK with Iowa’s adjacency distances – but if there are runoff problems, will work with DNR to designate as CAFO

CAFO (CONCENTRATED AFO)

CAFO - Three types:

Large CAFO

Medium CAFO

Designated CAFO CAFO must obtain a federal discharge permit

(NPDES) if the CAFO discharges or proposes to discharge pollutants to a water of the US

CAFO discharges or proposes to discharge if it is designed, constructed, operated, or maintained such that a discharge will occur

CAFO

Mixed animal CAFO’s

Do not add animal numbers from different categories to determine if CAFO threshold is triggered, as long as all animal numbers are below the threshold

Once the CAFO number threshold is met for one category, all manure generated by the AFO is subject to NPDES requirements Example, cattle OFO with less than 1,000 head

on the same site as hog CFO with more than 2,500 head -- hog CFO is a CAFO requiring an NPDES permit for the cattle OFO

LARGE CAFO

More than the number of animals in any one of the following categories:

700 mature dairy cows

1,000 cattle

2,500 swine weighing 55 pounds or more

10,000 swine weighing less than 55 pounds

500 horses, 10,000 sheep, 55,000 turkeys

30,000 laying hens or broilers (liquid manure)

125,000 chickens other than laying hens OR 82,000 laying hens (other than liquid manure)

DNR rules: 1,000 animal units where more than one category is kept in the same type of operation

MEDIUM CAFO

The number of animals in any one of the following categories:

200 to 699 mature dairy cows

300 to 999 cattle

750 to 2,499 swine weighing 55 pounds or more

3,000 to 9,999 swine weighing less than 55 pounds

Other categories for horses, sheep, turkeys, chickens

DNR rules: 300-999 animal units where more than one category is kept in the same type of operation

AND meet requirements on next slide

MEDIUM CAFO

Manure or process wastewater is discharged:

Into waters of the US through a man- made ditch, flushing system, or other similar man-made device; or

Directly into waters of the US which originate outside of and pass over, across or through the facility or otherwise come into direct contact with animals in the AFO.

MEDIUM CAFO

Key issue in Iowa: EPA: a road ditch is a “man-made ditch,

flushing system, or other man-made device” under the Medium CAFO definition

No change in this definition from pre-2003 EPA rule and that EPA rule stated that man-made means constructed by man and used for the purpose of transporting wastes

DESIGNATED CAFO

DNR may designate any AFO that is not a Large or Medium CAFO as a CAFO if after an on-site inspection DNR determines it is a significant contributor of manure to waters of the US using the following factors:

AFO size & amount of manure discharged

AFO location near waters of US

Means of conveyance to waters of US

Slope, vegetation, rainfall, and other factors

DESIGNATED CAFO

DNR cannot designate a CAFO with less than the Medium CAFO animal numbers unless:

Manure or process wastewater is discharged:

Into waters of the US through a man- made ditch, flushing system, or other similar man-made device; or

Directly into waters of the US which originate outside of and pass over, across or through the facility or otherwise come into direct contact with animals in the AFO.

DNR EVALUATION

DNR may evaluate an AFO and order remedial action if:

Manure is discharged into a water of the state

Manure is causing or may reasonably be expected to cause pollution of a water of the state

Manure is causing or may reasonably be expected to cause a violation of state water quality standards

IOWA LAW

OFO’s that are not Large CAFO’s, Medium CAFO’s or Designated CAFO’s must meet the following Iowa requirements:

Remove all settleable solids before discharge to a water of the state

Not violate a state water quality standard

CAFO

Without an NPDES permit, cannot discharge

With an NPDES permit

Large CAFO’s can only discharge from greater than 25-year, 24 hour storm event

Medium and Designated CAFO’s

Permit writer (Iowa DNR) must use “best professional judgment” (BPJ) to establish case- by-case appropriate technology-based requirements for each permit

EPA: on case-by-case basis, can have discharge in less than 25 yr 24 hr storm & reduced permit requirements

MANURE APPLICATION All livestock operations

No water 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 permanent vegetation 50 ft. around water source &

no manure on 50 ft. area (does not apply to ag drainage wells)

Note: Incidental spillage when incorporating

Designated areas are: Creeks, rivers, lakes, designated wetlands, known

sinkhole, cistern, drinking water or abandoned well, ag drainage well or surface inlet

Excludes terrace tile or surface tile inlets and lakes or ponds with no outlet and which are entirely on one landowner’s land

MANURE APPLICATION Confinement 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: For the separation distances from designated areas and residences, etc., DNR may consider incidental spillage (on endrows, etc.) while incorporating as surface application

MANURE APPLICATION Frozen or snow covered ground

Legislation effective July 1, 2009

New DNR rule on this legislation in effect on Sept. 15


Does not apply to:

Manure from open feedlot operations

Dry manure (can’t be pumped & doesn’t flow under pressure) (New rule: frozen liquid manure does not qualify as dry manure)

Liquid manure from confinement operations using formed storage with less than 500 animal units (1,250 hogs weighing more than 55 lbs. or 10,000 pigs weighing less than 55 lbs.)

Liquid manure injected or incorporated on the same date of application


No surface application of liquid manure from a confinement operation on

Snow covered ground from Dec. 21 to Ap. 1

Frozen ground from Feb. 1 to April 1

except in an emergency

Frozen ground

Impermeable to soil moisture

Does not include ground frozen only in top 2” or less

Snow covered ground

At least 1” of snow or ½” of ice


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 disaster

unusual weather conditions, or

equipment or structural failure


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

New rule: caller must give: Owner’s name & facility ID No. Reason for emergency app. & app. Date Estimate 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


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 – New rule: beginning Dec. 21, 2015, must have storage to avoid application from Dec. 21 to April 1 – before then, can still use emer. app. procedures even though not enough storage

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


Other considerations: 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

MANURE APPLICATION Restrictions on manure on soybeans

EPC rule effective May 14, 2008:

100# N/acre limit on land in an MMP to be planted to soybeans

100# N/acre limit “does not apply on or after June 1 of each year” – regular limit of 3.8# N/bu of soybean yield applies

Complete ban on May 14, 2013 if EPC reviews available scientific information and publishes notice that a complete ban will be put in place

STOCKPILING DRY MANURE

Four different categories of regulation depending on type of livestock operation Dry Animal Nutrient Product –regulated by

Iowa Department of Agriculture Open feedlot operations – 2006 legislation Confinement operations – 2009 legislation -

deep bedded cattle and hog barns Confinement operations – 2009 legislation -

other than deep bedded cattle & hog barns Federal EPA & DNR rules: CAFO’s cannot

discharge manure from production areas unless the discharge is pursuant to an NPDES permit. Definition of production area includes stockpiles

STOCKPILING DRY MANURE Dry bedded confinements– 2009 legislation

Dry bedded confinement cattle and hog barns Stockpiling:

At least 1,250 feet from a residence (other than barn owner’s), business, church, school or public use area unless waiver is granted or the manure is from a SAFO (less than 500 animal units)

At least 400 feet from a designated area or 800 feet from a high-quality water resource

At least 200 feet from a surface tile inlet unless steps taken to ensure runoff won’t reach tile inlet

Not in a grass waterway, where water pools, or where water will enter the stockpile

Not on more than 3% slopes unless measures to contain runoff are implemented

Must remove and land apply manure within 6 months.

STOCKPILING DRY MANURE Dry bedded confinements– 2009 legislation

If the stockpile is on Karst terrain or an alluvial aquifer area (both of these areas are marked on maps from DNR) the stockpile must have a concrete floor and any underlying soluble rock, sand or gravel must be at least 5 feet below the surface

Dry bedded manure: dry manure with “crop, vegetation, or forage residue or similar materials” used for the care of livestock

In addition to stockpiling, this legislation also establishes other beneficial requirements such as a 200 ft. separation distance from deep bedded confinements barns to watersources (creeks, etc.) instead of the 500 ft. distance for other confinement barns

DRY ANIMAL NUTRIENT PRODUCT

Must register with Iowa Dept. of Ag., list % of N,P, K & sell through an independent distributor

Also must file an MMP statement with DNR Stockpiling:

Not in a grassed waterway Not on greater than soil survey class B slopes Not within:

200 ft. of shallow private water supply or 100 ft. of deep well

500 ft. of a surface intake, wellhead or cistern of ag drainage well, known sinkhole or major water source (rivers)

200 ft. of creeks, streams, etc.

STOCKPILING DRY MANURE Open feedlot operations – 2006 Iowa legislation

Stockpile - store solids outside of a feedlot or structure or area that drains to a feedlot or structure

Stockpiling: At least 400 feet from a designated area or 800

feet from a high-quality water resource At least 200 feet from a surface tile inlet unless

steps taken to ensure runoff will not reach the tile inlet

Not in a grass waterway or where water pools Not on more than 3% slopes unless measures

to contain runoff are implemented Must remove and land apply solids within 6

months.

RECENT DNR RULE CHANGE Appeals of construction permits to EPC

Went into effect March 17, 2010 Changes to current rules include:

County will continue to have 14 days to file appeal but 30 days to file all documentation (will extend appeal period by 14 days)

EPC will have authority to designate experts (at least 7 days before hearing) to give testimony at the hearing – parties may ask them questions

All appeal materials, including the complete DNR file on the permit application, will be on the DNR website beginning no later than 5 days after county files demand for hearing

Any person may submit written material up to 15 days before the hearing and the material will be considered for inclusion in the appeal record by the chair of the EPC

OPEN BURNING

DNR rules prohibit open burning of combustible materials unless: DNR grants a variance Exemptions include:

Trees and tree trimmings & landscape waste Recreational fires Residential waste Paper or plastic pesticide containers and seed

corn bags. Must be ¼ mile someone else’s building, livestock area, wildlife area or water source. Cannot exceed one day’s accumulation or 50 pounds. If causes a nuisance, DNR may order relocation of burning.

Effect of rule: Burn barrels at livestock buildings are prohibited.

DNR ENFORCEMENT

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 competitors

AG NUISANCE CASES

Iowa

No cases went to trial in 2009 or 2010 and none scheduled for 2010

6 Currently Pending in Iowa District Courts

Swine

Story County 3,300 head finisher

Plymouth County 2,000 head finisher

Tama County 1,200 head finisher

Marshall County 2,400 head finisher

Poultry - Buena Vista County egg oper.

Dairy - Woodbury County 4,000 cows

NUISANCE

Steps to help to avoid lawsuit

Location

Separation distance

Prevailing winds

Tree buffers

Existing trees

Fast growing trees planted with slower growing species

Biofilters

Clean pigs and buildings

Manure treatments and additives

Timing of manure agitation and application

NUISANCE

Protection for producer

Insurance Standard farm liability policies

normally don’t cover – but producer should always check with the insurance company and/or an attorney

Environmental policies available Coverage for claims and costs of

defense

MANURE EASEMENTS

Iowa Court of Appeals

Crop farmer sold site for hog buildings to be

built – receive manure

Deed reserved right to all manure, but manure

easements stated hog producers were not

obligated to provide manure

Hog buildings sold – new owner - manure to

different farmer - farmer who sold site sued

Court ruled deed restriction not legally binding

& that manure easements controlled – farmer

who sold site not entitled manure

environmental regulations & nuisance case update€¦ · planned to begin (recommendation but...

Documents