Iowa Regulations & Nuisance Case Update - Eldon McAfee, Brick Gentry Law Firm, from the 2017 Iowa Pork Congress, January 25-26, Des Moines, IA, USA. More presentations at http://www.swinecast.com/2017-iowa-pork-congress

1. IOWA ENVIRONMENTALIOWA ENVIRONMENTAL
REGULATIONS & NUISANCEREGULATIONS & NUISANCE
CASE UPDATECASE UPDATE
IOWA PORK PRODUCERS ASSOC.IOWA PORK PRODUCERS ASSOC.
IOWA PORK CONGRESSIOWA PORK CONGRESS
January 25, 2017January 25, 2017
Eldon McAfeeEldon McAfee
Julie VyskocilJulie Vyskocil
Erin Herbold SwalwellErin Herbold Swalwell
Brick Gentry, PCBrick Gentry, PC

2. NEW DNR RULES
Effective 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” 2

3. NEW DNR RULES
Effective as of Dec. 14, 2016
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
3

4. NEW DNR RULES
Effective as of Dec. 14, 2016
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
4

5. NEW DNR RULES
Effective as of Dec. 14, 2016
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
5

6. NEW DNR RULES
Effective as of Dec. 14, 2016
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
6

7. NEW DNR RULES
Effective as of Dec. 14, 2016
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.)
7

8. NEW DNR RULES
Effective as of 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
8

9. NEW DNR RULES
Effective as of Dec. 14, 2016
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
9

10. NEW DNR RULES
Effective as of Dec. 14, 2016
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
10

11. NEW DNR RULES
Effective as of Dec. 14, 2016
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
11

12. NEW DNR RULES
Effective as of Dec. 14, 2016
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
12

13. 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)
13

14. RULES TO IMPLEMENT CODE
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
14

15. RULES TO IMPLEMENT CODE
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
15

16. RULES TO IMPLEMENT CODE
 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
16

17. MANURE APPLICATION – DNR RULES
On snow or frozen ground
 Does not apply to:
Manure from open feedlot operations
Dry 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
17

18. MANURE APPLICATION – DNR RULES
On snow or frozen ground
 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
18

19. MANURE APPLICATION – DNR RULES
On snow or frozen ground
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
19

20. MANURE APPLICATION – DNR RULES
On snow or frozen ground
 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. 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
20

21. MANURE APPLICATION – DNR RULES
On snow or frozen ground
 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 21

22. MANURE APPLICATION – DNR RULES
On snow or frozen ground
 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
22

23. 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
23

24. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
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 CFOs
Medium sized CFOs
24

25. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
 Are on-site inspections required?
Large CAFOs
On-site inspections required
In 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.
25

26. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
 Are on-site inspections required?
Medium-sized CFOs
Discharge to water of U.S. in last 5 years
Significant 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
26

27. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
 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 OFOs
OFO 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
27

28. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
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
28

29. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
DNR on-site inspections of CFOs for
discharges requiring an NPDES permit
DNR must contact producer 1 – 3
days before inspection
Producer to have MMP and other
facility records available
DNR will not enter confinement
buildings
DNR must follow producer’s standard
bio-security policy, if none, must
follow DNR bio-security protocol
29

30. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
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
30

31. 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
31

32. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
When notified of inspection,
producers should:
Ask for copy of desktop
assessment before on-site
inspection
Discuss with DNR whether
previous on-site inspection
qualifies for NPDES inspection
Inform DNR of bio-security policy
Contact consultant, engineer, etc.
32

33. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
 During inspections DNR is to:
Review MMP and other records
Ask about maximum number of head
confined at one time over last 12 months
Inspect (documentation will include photos):
Manure storage structures
Manure stockpiles
Perimeter tile – inspection port or outlet
Feed storage
Mortality handling areas and composting
Areas downhill of CFO
Discharges? Photos & samples
33

34. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
 DNR on-site inspections of CFOs for
discharges requiring an NPDES permit - after
the inspection DNR is to:
Complete inspection report within 2 weeks
Document 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
34

35. 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 35

36. 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
36

37. 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
37

38. 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
38

39. ANIMAL CAPACITY Animal unit capacity
– double-stocking, over-stocking, etc.
 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
39

40. 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
40

41. ANIMAL CAPACITY Animal unit capacity
– double-stocking, over-stocking, etc.
 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
41

42. CONFINEMENT OPERATIONS
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
anerobic 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
42

43. CONFINEMENT OPERATIONS
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.)
43

44. 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.”
CONFINEMENT OPERATIONS
One or two?
44

45. 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.”
CONFINEMENT OPERATIONS
One or two?
45

46. 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.)?
CONFINEMENT OPERATIONS
One or two?
46

47. 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?
CONFINEMENT OPERATIONS
One or two?
47

48. 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
48

49. DES MOINES WATER WORKS LAWSUIT -DES MOINES WATER WORKS LAWSUIT -
CLEAN WATER ACTCLEAN WATER ACT
 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?
49

50. DES MOINES WATER WORKS LAWSUIT -DES MOINES WATER WORKS LAWSUIT -
CLEAN WATER ACTCLEAN WATER ACT
 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
50

51. DES MOINES WATER WORKS LAWSUIT -DES MOINES WATER WORKS LAWSUIT -
CLEAN WATER ACTCLEAN WATER ACT
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”
51

52. 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 52

53. AG NUISANCE CASESAG NUISANCE CASES
One ag nuisance case to trial in Iowa in 2015
Poweshiek 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 53

54. AG NUISANCE CASESAG NUISANCE CASES
 One case to trial in Iowa in 2016
 Pauls et. al. v. JBS Live Pork, LLC, Wapello County
– 4,280 hd swine finishing site
 9 plaintiffs, 4 residences, 1.2 to 2.5 miles away
 3 week jury trial, jury verdict on 2/29/16
 No nuisance, $0 awarded
 After 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
54

55. AG NUISANCE CASESAG NUISANCE CASES
Cases currently pending set for trial in
2017:
Poweshiek County – swine finishing –
jury trial May 20, 2017
Union County – cattle feedyard – jury trial
July 31, 2017
Louisa County – swine finishing – jury
trial Sep. 12, 2017
Buchanan County – cattle feedyard –
jury trial Nov. 15, 2017
55

56. AG NUISANCE CASESAG NUISANCE CASES
Cases currently pending set for trial in 2018:
 Henry County – swine finishing – jury trial Feb.
2018
Des 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
56

57. AG NUISANCE CASESAG NUISANCE CASES
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
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58. AG NUISANCE CASESAG NUISANCE CASES
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
 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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59. AG NUISANCE CASESAG NUISANCE CASES
Protection for producerProtection for producer
 Insurance
 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
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60. AG NUISANCE CASESAG NUISANCE CASES
Protection for producerProtection for producer
 Nuisance defense laws
 All 50 states have some type of law
 Most favorable court decisions to producer
 Indiana - 2014
 Missouri 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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61. AG NUISANCE CASESAG NUISANCE CASES
Protection for producerProtection for producer
 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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62. 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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63. 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 cows
 1,000 veal calves
 1,000 cattle (other than above)
 2,500 swine – 55 pounds or more
 10,000 swine – less than 55 pounds
 Also includes horses, sheep, turkeys, chickens,
and ducks
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64. EPA AIR EMISSIONS REPORTING
3 Step Process
 Telephone DNR & Local Emer. Response
Committee
 Initial written report within 30 days
 Follow-up written reports:
If significant increase
Increase in emission levels above the
reported normal range of the continuous
release
Status report
Filed within 30 days of the one year
anniversary of the initial written report
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65. 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
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