Iowa Regulations & Nuisance Case Update

IOWA ENVIRONMENTALIOWA ENVIRONMENTAL
REGULATIONS & NUISANCEREGULATIONS & NUISANCE
CASE UPDATECASE UPDATE
IOWA PORK PRODUCERS ASSOC.IOWA PORK PRODUCERS ASSOC.
IOWA PORK CONGRESSIOWA PORK CONGRESS
January 23, 2019January 23, 2019
Eldon McAfeeEldon McAfee
Julie VyskocilJulie Vyskocil
Erin Herbold SwalwellErin Herbold Swalwell
Brick Gentry, PCBrick Gentry, PC

RECENT AG NUISANCERECENT AG NUISANCE
JURY VERDICTS - IOWAJURY VERDICTS - IOWA
One ag nuisance case to trial in Iowa to date in
2019
Lympus & Fitzgerald v. Brayton & Higgins– 800
head cattle concrete open feedlot with concrete
runoff control basin
3 plaintiffs, 2 residences, each 500 ft. north
of the feedlot
Judge ruled AFO nuisance defense was
constitutional under the Honomichl analysis
Jury verdict 1/17/19
No nuisance, $0 awarded
2

JURY VERDICTS - IOWAJURY VERDICTS - IOWA
One ag nuisance case to trial in Iowa in 2015
McIlrath v. Prestage Farms of Iowa– Poweshiek
County- 2490 hd swine finishing site – one plaintiff –
2,200 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); final total verdict of $462,500
One case to trial in Iowa in 2016
Pauls v. Warren– 4,280 hd swine finishing site - 9
plaintiffs, 4 residences, 1.2 to 2.5 miles away – Jury
verdict 2/29/16, No nuisance, $0 awarded - After trial
court ordered plaintiffs to pay $48,666.61 for litigation
costs and expenses (no attorney fees)
3

JURY VERDICTS – OTHER STATESJURY VERDICTS – OTHER STATES
 Marsh et. al. v. Sandstone North et. al. - Illinois
 Two 7,500 hd swine finishing farms ¼ mile apart
 10 plaintiffs, 5 residences, 1/10 to 1.6 mi. away
 Jury verdict, 5/24/16, no nuisance
 King v. Peco Foods – Mississippi
 Poultry, broiler;
 55 plaintiffs
 Jury verdict 3/15/17, no nuisance
 Winter et. al. v. Gourley Premium Pork - Minnesota
 3,200 sow farm
 6 plaintiffs, 4 residences, ¼ to ½ miles away
 Jury verdict 12/15/17, no nuisance
4

JURY VERDICTS – NO. CAROLINAJURY VERDICTS – NO. CAROLINA
 McKiver v. Murphy-Brown, LLC, nuisance jury verdict 4/26/18
 15,000 head swine finisher, 10 plaintiffs
 $75,000 compensatory damages, Total judgement: $3.25 M
compensatory and punitive damages (after statutory cap)
 McGowen v. Murphy-Brown, LLC, nuisance jury verdict 6/29/18
 4,740 swine finisher (2 farms), 2 plaintiffs
 $65,000 compensatory damages, Total judgment: $630,000
 Jacobs v. Murphy-Brown, LLC, nuisance jury verdict 8/3/18
 $23.5 million compensatory damages, Total judgment: $94 million
 v. Murphy-Brown, LLC, nuisance jury verdict 12/12/18
 Total judgment: $102,400 compensatory damages, judge ordered no
punitive damages
5

IOWA AG NUISANCE CASESIOWA AG NUISANCE CASES
Cases currently pending set for trial in 2019 & 2020:
1.Henry Co. – swine finishing – jury trial 1/29/19
2.Jefferson Co. – swine finishing – jury trial 6/18/19
3.Des Moines Co.- swine finishing–jury trial 6/25/19
4.Wright Co. - poultry egg laying– jury trial 10/21/19
5.Poweshiek Co.-swine finishing – jury trial 1/28/20
6.Wapello Co. – swine finishing – jury trial 2/18/20
7.Iowa Co. - swine finishing – jury trial 2/18/20
8.U.S. DCT - swine finishing – not yet scheduled
6

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 7

Steps to help to avoid lawsuitSteps 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
8

Protection 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
Environmental policies available
 Coverage provided for odor nuisance claims
 Coverage for legal and other costs of defense
 Insurance 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
9

Animal Feeding Operations Nuisance
Defense, Iowa Code §657.11
Not a nuisance unless plaintiffs can prove:
AFO did not comply with applicable law;
or
AFO did not use generally accepted mgt
practices and unreasonably and for
substantial periods of time interfered with
the person’s comfortable use and
enjoyment of the person’s life or property
10

 Gacke v. Pork Xtra (Iowa 2004) ruled §657.11 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
 Honomichl v. Valley View Swine. (Iowa 2018) ruled the
constitutionality of §657.11 must be determined for each
plaintiff by each plaintiff proving that they:
 Received no benefit from §657.11 other than public
benefit
 Sustained significant hardship
 Resided on their property long before the AFO began &
spent considerable sums of money for property
improvements
11

2017 Iowa Legislation: Iowa Code §657.11A
New protection in addition to current law
 If use generally utilized mgt practices & comply with
applicable law (can’t be habitual violator), if ruled to be a
nuisance (or interference with use and enjoyment of life or
property under any other cause of action):
 Will be permanent & not temporary/continuing
nuisance
 Compensatory damages cannot exceed:
 Decrease in fair market value of property
 Damages for medical condition
 Special damages (annoyance & loss of use and
enjoyment of property) of not more than 1 ½ times
decrease in property FMV plus medical damages 12

EPA AIR EMISSIONS REPORTING
 Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) air
release reporting requirements:
 Fair Agricultural Reporting Method Act – exempts
air emissions from animal waste at a farm from
CERCLA.
 Emergency Planning and Community Right-to-Know
Act (EPCRA) air release reporting requirements:
 Proposed EPA rule would exempt livestock
operations from a requirement to report
emissions from manure under EPCRA.
 Public comment period ended Dec. 14, 2018
13

DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
DNR to provide progress updates
Reports to EPA and post on DNR
website: “EPA/DNR Workplan Materials”
DNR Aug. 1, 2018 report:
Completed 5th
year of Workplan
100% of baseline inventory desktop
and/or on-site inspections
completed
170 total active NPDES permits
14

DNR Aug. 1, 2018 report:
DNR identified 5,063 additional AFOs in 2017
that need further investigation to determine
regulatory status
As of 7/ 31/18, 2,772 (54.8%) were vetted
Of these 2,772, (99.4%) are not regulated
by state or federal law
Of the 18 requiring regulation, 10 medium
AFOs needed MMPs and 8 were large
CAFOs, none of which were discharging
DNR anticipates vetting a majority of the
remaining unknown facilities by the end of
2018
15

DNR Aug. 1, 2018 report: 2,772 vetted
unknown AFOs:
Small Animal Feeding Operations
(SAFOs) – 1,445 facilities
Medium AFOs – 501 facilities
Medium AFOs needing a state-required
MMP – 10 facilities
Large CAFOs – 8
Not an AFO – 134
Closed AFO – 538
Already part of an existing AF0 - 136
16

“A confinement feeding operation shall retain all manure
produced by the operation between periods of manure
disposal. . . .”
Lawsuit by 4 NE Iowa residents alleging that DNR must
regulate air emissions from CFOs based on this law
Polk Co. judge dismissed the lawsuit:
 “459.311(1) is a water quality provision. It requires
producers to ‘retain all manure’ in a manner that will
not pollute the state’s waters. It is not an air quality
provision. It does not regulate ‘air emissions from hog
confinements.”
Dismissal has been appealed to Iowa Supreme Court
DNR – MANURE CONTROL-459.311
17

 Required distance based on date of construction:
 5/31/95 – 12/31/98: 200 ft. to a navigable water
 1/1/99 – 2/28/03: 200 ft. to a “watercourse”
 3/1/03: 500 ft. to a “water source”
 Water source: body of water or channel having
definite banks and bed with water flow
 Watercourse: body of water or channel having
definite banks and bed with water flow or the
occurrence of water
SEPARATION DISTANCES
Water bodies – creeks, etc.
18

 Exemptions:
 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.
19

Exemptions:
Secondary containment barriers
 Surround or downslope of manure storage
 Liquid manure: Must contain greater of 120% of
manure stored above grade or 50% of manure
below ground
 Can be concrete and/or earthen
 Liquid manure: earthen barriers must meet
percolation & design standards
 Can have relief outlet or valve – must remain
closed & any liquid due to overflow must be land
applied per MMP
20

Exemptions:
Secondary containment barriers
 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:
 Contain 10% of manure stored
 Design by owner or representative
 Percolation & design standards do not apply
 Manure in containment must be removed &
applied within 14 days
“In lieu of the construction of the secondary
containment barrier, the manure control structure can be
designed to retain the manure and direct the manure
back into the storage structure”
21

 DNR Rule effective May 12, 1999: Human
sanitary waste shall not be discharged to a
manure storage structure or egg washwater
storage structure.
 “Human sanitary waste” means wastewater
derived from domestic uses including
bathroom and laundry facilities generating
wastewater from toilets, baths, showers,
lavatories and clothes washing.
ENVIRONMENTAL REGULATION
MANURE STORAGE – NO HUMAN SANITARY
WASTE
22

DNR rule:
CFO - construction permit – below engineering
threshold:
 prior to using a permitted CFO structure, the person
responsible for constructing a formed manure
storage structure or the permittee shall submit to
DNR a construction certification, as specified in the
construction permit
CFO – construction permit – above engineering
threshold
 Certification from engineer
CONSTRUCTION CERTIFICATION
23

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
24

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
25

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 = 480
Finishing phase: 2,400 x .4 =
960
AUC for site is 960
26

 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
27

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
28

 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
29

Iowa Code 459.201(1):
“Two or more animal feeding
operations under common ownership
or management are deemed to be a
single animal feeding operation if they
are adjacent or utilize a common
system for manure storage. . . .”
CONFINEMENT OPERATIONS
One or two?
30

One 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
anaerobic digesters)
 Adjacent – CFO’s within:
 1,250 feet if the combined AUC is <1,000
 2,500 feet if the combined AUC is >1,000
31

One or two?
 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.)
32

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.”
One or two?
33

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.”
One or two?
34

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.)
One or two?
35

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?
One or two?
36

An existing swine CFO may be expanded if:
For a CFO constructed before 1/1/99, any construction or
expansion of a CFO structure complies with the distance
requirements applying to that structure as provided in DNR
Rule Table 6c
For a CFO constructed on or after 1/1/99, but before 3/1/03,
any construction or expansion of a CFO structure complies
with the distance requirements applying to that structure as
provided in DNR Rule Table 6a
For a CFO constructed on or after 3/1/03, any construction
or expansion of a CFO structure complies with the distance
requirements applying to that structure as provided in DNR
Rule Table 6
Expansion - separation distances DNR 65.11(2)
37

Environmental Regulation ComplianceEnvironmental Regulation Compliance
What if DNR interpretation of law is incorrect?What if DNR interpretation of law is incorrect?
2004 Iowa Supreme Court case:
Business required to get a solid waste
disposal permit even though DNR employee
initially incorrectly advised that a permit was
not required
Court ruled DNR employee was acting in
good faith and within his duties even though
the employee made an erroneous
interpretation of the law
38

SEPARATION DISTANCE WAIVERS
DNR rule:
Titleholder land where residence, etc. located
Titleholder of the land where the CFO structure
is located
Under 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 notarized
Verify legal descriptions & legal ownership
Consider nuisance covenant 39

DNR RULES
Effective Dec. 14, 2016
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
40

 Federal rules (40 CFR 61.145) require
written notification to DNR, an asbestos
inspection and if necessary, asbestos
removal before demolition or renovation of a
“regulated facility”
 Producers demolishing confinement livestock
buildings without notifying DNR and
conducting an asbestos inspection have
been have been required to pay a penalty
and ordered to remediate by taking all ashes
and demolition debris to a landfill as
asbestos-containing waste material
DEMOLITION – ASBESTOS REMOVAL
41

 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.
OPEN BURNING
42

DNR RULES
Definitions:
Common management: term “person”
replaced with “individual” to make it more
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” 43

DNR RULES
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
44

DNR RULES
Expired construction 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
45

DNR RULES
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
46

DNR RULES
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 containment
Dry manure retained in the secondary
containment must be removed and
properly disposed within 14 days
47

DNR RULES
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.)
48

DNR RULES
Concrete standards:
Form ties used in concrete wall
construction must be nonremovable
No conduits or pipes can be
installed through an outside wall
below the maximum liquid level of the
structure
49

DNR RULES
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
50

DNR RULES
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
51

DNR RULES
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
52

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 competitors
53

Iowa Environmental Regulations Handbook
In depth discussion and analysis of
environmental regulations, with practical
points for analysis and compliance
DNR Construction Requirements
DNR Manure Management
Requirements
Example separation distance waivers &
manure agreement
www.iowapork.org; Producer Resources;
Iowa Environmental Regulations Handbook
54

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