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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Opposes Weakening Local Ordinances On Confined Hog Feeding Operations  Posted: June 7, 2005
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail: fitzKRC@aol.com
www.kyrc.org

May 31, 2005

Open Letter To Fulton & Hickman County Fiscal Courts Regarding Proposed Confined Hog Operations

This letter is written at the request of residents of both Hickman and Fulton Counties, for several reasons.

First, this letter summarizes the authority of local governments to enact and enforce ordinances relating to intensive animal feedlot operations. Next, this letter summarizes technical literature concerning the adverse environmental, health and economic consequences that may be associated with intensive animal feedlot operations, providing what the Council believes is a compelling case for strengthening and updating local ordinances to assure that such operations will not cause a nuisance or result in air, land or water pollution.

Since the most recent proposals for intensive hog operations in Hickman and Fulton Counties propose to utilize deep-pit manure storage followed by soil injection, the potential environmental and health effects of those approaches to manure storage and disposition are highlighted. KRC asks that these concerns be considered in the issuance of any permit or authorization by Fulton or Hickman County Fiscal Courts, in order to assure protection of the legitimate rights of nearby landowners and to protect the county’s air, land and water resources.

Finally, the Council was asked to review the existing and proposed amendments to the Fulton County and Hickman County ordinances, and to suggest changes to strengthen the ordinances in order to assure that public health and the environment are protected, and conditions that should be included in any permit issued by local government authorizing the construction and operation of intensive, confined hog facilities.

KRS 67.083 Provides Ample Authority For County Ordinances Establishing Permitting, Siting And Operational Requirements For Confined Hog Operations

In reported press statements, at least one local official has expressed concern that counties seeking to regulate the location or operation of concentrated animal feedlot operations might be subject to lawsuits challenging the authority to do so in the absence of zoning.

In fact, the county has broad authority, in addition to those powers to regulate land use under KRS Chapter 100, to enact ordinances in order to protect public health and welfare, provided that the ordinances bear a reasonable relationship to advancement and protection of public health and welfare. KRS 67.083, the county “home rule” statute, specifically recognizes the authority of a county to enact ordinances to control animals in order to protect the public, and several independent sections of that statute empower the county to act:

§ 67.083. Additional powers of fiscal courts

(1) It is the purpose of this section to provide counties as units of general purpose local government with the necessary latitude and flexibility to provide and finance various governmental services within those functional areas specified in subsection (3) of this section, while the General Assembly retains full authority to prescribe and limit by statute local governmental activities when it deems such action necessary.

* * *

(3) . . . [T]he fiscal court of any county may enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds, and employ personnel in performance of the following public functions:

(a) Control of animals, and abatement of public nuisances;

* * *

(c) Public sanitation and vector control;

* * *

(h) Conservation, preservation and enhancement of natural resources including soils, water, air, vegetation, and wildlife;

* * *

(k) Planning, zoning, and subdivision control according to the provisions of KRS Chapter 100;

* * *

(m) Regulation of commerce for the protection and convenience of the public;

* * *

It is apparent that the County, in addition to the ability to adopt planning and zoning restrictions under KRS Chapter 100, has the authority to regulate the location and operation of intensive animal feedlot operations as necessary for the protection and convenience of the public,” in order to prevent and abate nuisances, to prevent disease and illness from vectors, and as necessary to “conserv[e], preserv[e] and enhanc[e] natural resources including soils, water, air, vegetation, and wildlife[.]”

It is equally clear that, while all would agree that a county cannot enact planning and zoning regulation without adhering to KRS Chapter 100, the adoption of regulations restricting the location and manner of operation of animal feedlots is not prohibited simply because it affects the ability of a person to use their land – for were that the case no local ordinance preventing nuisance or regulating commerce would be valid.

It has long been acknowledged by the courts that under the home rule powers conferred by the General Assembly, local government has the power to perform the critical function of protecting the health and welfare of its citizens.

The prime function of these units of government is to promote the safety, convenience, comfort, and the common welfare of their citizens by establishing and maintaining those things which tend to do so and by regulating or prohibiting those things which are hurtful. The conservation of public health should be of as much solicitude as the security of life. It is an imperative obligation of the state and its fulfillment is through inherent powers. The health of a community is the special concern of the local units of government, and to meet local demands there can be no question that the Legislature may invest them with ample authority.

Nourse v. City of Russellville, 78 S.W.2d 761, 764 (1935).

The keeping of poultry and other animals in confinement facilities has the potential to become a nuisance, and such operations have long been a matter both of litigation, and of local regulations that have been upheld against challenge. Nourse v. City of Russellville, 78 S.W.2d 761 (1935); Valley Poultry Farms v. Preece, 406 S.W.2d 413 (1966); Shaeffler v. City of Park Hills, Kentucky, 279 S.W.2d 21 (1955) Without proper management. and reasonable care for the surrounding environment, and the corresponding rights of adjoining and nearby property owners, the noises, odors, insects, runoff, leachate and disposal of wastes are potentially harmful to the surrounding properties and waterways, and ultimately can become an intolerable nuisance to the surrounding community.

Zoning powers are one of the powers conferred by KRS 67.083 and controlled by KRS Chapter 100, but that authority does not limit the ability of the county to adopt reasonable ordinances governing certain potentially noxious activities such as intensive agricultural feedlot operations. Zoning involves the “territorial division of land into use districts according to the character of the land and buildings, the suitability of land and buildings for particular uses, and uniformity of use.” The ordinances in question do not designate a particular area of the county for hog or non-hog use, but instead require certain informational and performance requirements be met, including the use of setbacks to provide isolation of odors and insects, regardless of where within the county an operation proposes to locate.

The constraints on local government action are only that the ordinance must have some reasonable relation to a proper police power subject (the preservation of public health, safety or welfare) and that the ordinance not be “inconsistent” with state statutes regulating in the same area. Consistency is defined by KRS 67.083(6) as being the same as or more stringent than a state statute or administrative regulation that prescribes a minimal standard of conduct.

In this instance, the state regulations governing air and water pollution and disposal of wastes from agricultural feedlot operations establish minimum standards of responsibility that the county can meet, incorporate by reference and enhance penalties for violations of, or improve upon by adopting a higher level of accountability and protection for public health and welfare. The counties are certainly aware of the repeated efforts during the Patton Administration to adopt more rigorous controls on intensive feedlot operations (including extending joint liability to controllers and corporate integrators); efforts that were rebuffed by legislative committees and which sunset in accordance with law. Reliance on state regulations that the previous administration had itself acknowledged to be insufficient to fully protect public health and the environment, does a disservice to the county’s residents and environment.

In summary, the Council believes that the requirement for submittal of management plans, the imposition of setbacks intended to protect surrounding lands, waterways, and public health, and other reasonable controls on potentially noxious activities do not violate KRS Chapter 100 merely because they may limit the ability to more intensively develop or exploit land, any more than a requirement that garbage be properly contained and disposed of, that septic tanks or other on-site wastewater systems be setback from adjoining lands or wells, or other public health restrictions constitute zoning.

Having established that the county has broad police power authority to regulate intensive feedlot operations in order to prevent and abate nuisance, control disease and insects, conserve air, land and water resources and to regulate commerce to promote public convenience and public good, we turn to the environmental and other effects of intensive hog operations, both generally, and then specifically utilizing deep pit or underfloor waste containment systems and soil injection.

Potential Environmental And Health Concerns With Confined Hog Operations

Intensive, confined hog operations are a component of a system of industrial production of pork products through an integrated structure of companies, investors and contractors. A modern industrial-type hog operation includes one or more hog houses holding hundreds or thousands of animals, an automated feeding system, slatted metal floors with a feces and urine collection system, an anaerobic lagoon or underfloor waste collection system, and fields for land disposal of partially decomposed wastes. Hogs produce a large amount of waste per animal, with various estimates giving figures of between 2 to 10 times as much as a human per day.

The environmental problems associated with intensive hog operations arise in great extent because too many animals are confined in one place, creating a significant waste and wastewater volume containing high levels of nitrogen, phosphorus, and other constituents such as certain metals, that must be managed and disposed. The waste products of such facilities, although posing significant environmental and health concerns not dissimilar from human waste, are managed in a much less rigorous fashion that poses a significant risk of on and off-site environmental contamination.

The council believes that the environmental and human health costs associated with these operations and the management of the wastes and wastewaters generated by these facilities must be fully accounted for by the facilities rather than being externalized through groundwater or surface water pollution, contamination of agricultural land, and loss of property values and of use and enjoyment of other properties due to airborne odors, pathogens and air toxic emissions. Among the environmental and public health concerns associated with the facilities are these:

I. Odors

The sources of odors from swine operations include ventilation air released from swine buildings, waste storage and handling systems including lagoons, and spray irrigation and other land application of manure and wastewaters. The odors are produced by a mixture of fresh and decomposing feces, urine, and spilled feed. The more objectionable odors appear to result from anaerobic microbial decomposition of the feces. A broad range of compounds has been identified in livestock manure including volatile organic acids, alcohols, aldehydes, mercaptans, and nitrogen heterocycles.

The odors from livestock manure are the result of a broad range of odor-producing compounds. Researchers have identified a total of 168 compounds associated with livestock manure. Thirty of them have very low thresholds at which the odors are detectable (less than 1 part per billion). Commonly reported compounds include sulfur-containing compounds, ammonia, volatile organic acids, phenols and alcohols.

In most large-scale facilities, the manure and urine that do not collect on the swine pass through slatted floors into a holding area beneath the building, where they remain until the next removal date. These holding areas often generate a large portion of the odors associated with housing facilities, especially when ventilation devices are utilized, pumping the odour by-products of decomposition outdoors.

The effect of environmental odors from commercial swine operations has been studied extensively by Dr. Susan Schiffman and others at Duke University. Dr. Schiffman reported that odors from swine operations have a significant negative impact on mood of nearby residents. Research from Duke University indicates that odors from hog farms cause tension, depression, anger, fatigue, and confusion in neighboring residents. Among the findings of Dr. Schiffman are that odorous compounds can be carried in a plume, and the concentration of these compounds may not be significantly reduced at distances of 750-1500 feet or more downwind from a source. This distance, and the fact that the number of odor-causing molecules needed to induce strong adverse reactions from humans are very small (in the parts-per-billion or parts-per-trillion range), suggests that setbacks of significant distances may still be no guarantee that adjoining and nearby properties will not be adversely affected. A North Carolina State University study indicated that “proximity of hog operations has a statistically significant and negative impact on property values.”

Dr. Schiffman also noted that roofing shingles, siding, fabrics and other materials can act as “sinks” for hog odors, trapping the compounds at night and releasing them during the day.

Odor in confinement buildings are of concern. Studies by Donham et al. have identified ventilation gases from urine on floors as a major source of ammonia emissions, where some 25-40% of the nitrogen in the animal wastes are converted to ammonia gas, much of which is reconverted to nitrate and deposited on land and water nearby. Emissions from these sources as well as anaerobic lagoons and land application, have not been traditionally regulated as a source of air pollution, but should be aggregated and classified as air emissions and be subject to appropriate permitting and limits.

a. Odors From Deep-Pit Systems

The use of an underfloor or “deep pit” manure collection system, has the effect of concentrating odors within the living environment for the animals and the workplace for those employed by the hog operation. “The source of odors from a manure pit is the volatile compounds generated during the decomposition of manure. The two principal odorous compounds are those containing sulfur (hydrogen sulfide) and those containing ammonia (nitrogen). The techniques for odor and gas control inside swine confinement barns are limited[,]” and usually involve venting the odors through the pit to the outside air.” The use of commercial chemical products introduced into the waste or feed to mask, block the sensing of odors, absorb odors or to alter the decomposition to avoid generating odors, have generally proven disappointing. Id.

Studies describing the adverse respiratory effects on swine production workers have been published in several countries, concurring that approximately 50% of the studied workers experiences one or more adverse respiratory health outcomes, including bronchitis, toxic organic dust syndrome, hyper-reactive airway disease, occupational asthma, hydrogen sulfide intoxication or chronic mucous membrane irritation. (Reynolds 1996).

The deep-pit waste system involves a high loading rate and favors minimal digestion of nutrients and production of metabolic end products (gases). With this type of system the gases/odors tend to be predominantly H2S (hydrogen sulfide) and VOCs (volatile organic compounds). Around manure pits, hydrogen sulfide gas can be a very serious hazard. At low concentrations, this gas is identifiable by its “rotten egg” odor, but at high concentrations, it may be undetectable by smell and can cause instant respiratory arrest and death. Several people in the Midwestern United States have been killed or critically injured by exposure to hydrogen sulfide after the agitation of liquid manure in deep pits. Noxious gases formed during storage of animal manures can pose a serious threat to the health and safety of both the worker and the animal; producing acute responses even after short period of exposure to high levels of these gases, ranging from temporary irritation to discomfort to death.

The storage of liquid manure under the building is being phased out on farms in Western Europe but is still fairly common in North America. The “most dramatic effect of any agent within livestock confinement buildings is that of the acute poisoning from hydrogen sulfide gas. For buildings with liquid manure stored under the buildings, occasional sudden exposures to high levels of hydrogen sulfide may result in fatal acute poisonings or pulmonary edema when the manure is agitated.”

Odors generated in livestock housing facilities that exit the housing can make their way to downwind neighbors. Odorous compounds tend to be carried on dust particles, and strategies to reduce odors focus primarily on housekeeping measures to reduce dust emissions, including “filtration of exhaust air as it leaves the housing facilities, filtration of odorous air prior to moving past the property line, construction of impermeable barriers to arrest particle transport, and reduction in the formation of odorous compounds within the housing environment.” Mechanical or biofiltration or use or air scrubbers can significantly reduce odorous emissions, and are recommended for “high-load” systems such as deep pits where biological processing of the waste tends to be incomplete due to an imbalance in microbial populations and a loading rate exceeding the microbial ability to utilize the waste sufficiently to prevent accumulation of odorous intermediate compounds. Id.

Since the primary cause of odor generation in the removal of manure from swine buildings is the agitation and mixing of manure, the method and frequency of removing the manure must be detailed, and carefully managed. The system should be closed, with ventilation systems that are biofiltered prior to release into the air.

b. Odors from Anaerobic Lagoons

Odors from anaerobic lagoons are a significant problem. According to the North Carolina Swine Odor Task Force, during the start-up period for lagoons, odors will be generated until the biological process stabilize, which may take as much as a year. Thereafter, addition of raw wastes too rapidly or thermal inversions can cause significant odors. Anaerobic conditions are responsible for far greater odor problems than aerobic treatment. While ammonia, with its sharp, pungent irritating odor, is caused by both aerobic and anaerobic conditions, anaerobic decomposition of manure is responsible for the powerful rotten egg odors of hydrogen sulfide, for volatile organic acids, and for the highly odorous phenolics. Ammonia disperses quickly; by contrast hydrogen sulfide is heavier than air and disperses slowly, and with phenolics has a very low detection threshold. Maintaining manure in an aerobic state results in stable organic compounds with minimal odor relative to the intense odor associated with anaerobic decomposition.

Anaerobic lagoons have traditionally been prohibited from use in treating human wastes because of odors, and aeration has been the process of choice because, among other things, it generally eliminates noxious odors. Aerobic treatment has been found to be the most effective method to date for deodorizing pig slurry. Aeration technology has been available for many years. AWASH process has been applied recently to hog wastewater in North Carolina. Composting manure, which is the aerobic treatment of manure in a temperature range of 104-149 degrees F, has advantages of little odor of fly breeding potential when used as fertilizer, and of reducing manure volume, as well as killing pathogens.

Wastewater management is a concern because wastewaters can become nitrified. As discussed below, the most appropriate strategy from a public health, environmental and odor standpoint is to prohibit anaerobic treatment in open lagoons as a stand-alone strategy for intensive hog operations, or at a minimum to require the applicant to demonstrate why more advanced technologies are not used and how the proposed approach will effectively prevent on and off-site hazards to worker and public health, and prevent nuisance.

The Swine Odor Task Force report Options for Managing Odor, identified facilities, lagoons, land application and disposal of dead pigs as the major sources of odors, and identified alternative waste handling systems that can reduce the amount of waste to be treated or improve the management of such waste through separate handling of solids and liquids.

II. Human Health Consequences

While much of the historic debate over intensive hog production operations has centered on lagoon releases and odors from confinement facilities and manure disposal, waste pathogens are a significant public health concern. Hog wastes, and hog carcasses disposed of on-site, contain a vast array of pathogens, including viruses, bacteria, protozoans and parasitic worms, including many that form resting stages or spores that can remain viable in the soil for years. Cryptosporidia and giardia, both of which are associated with hog wastes, are particularly resistant to conventional chlorination.

The physical and emotional toll of odors associated with these operations has been documented. “Downwinders” may suffer increased tension, depression, fatigue, nausea, vomiting, headaches, shallow breathing, coughing, sleep disturbances, loss of appetite. The odor clings to curtains, clothing and houses, and causes a decline in the value of affected properties.

Nitrate contamination, long associated with blue baby syndrome, may be associated with an increased risk of non-Hodgkin’s lymphoma (NHL). A study published in the September 1996 issue of Epidemiology indicates that, based on an assessment of the average amount of nitrate consumed in tap water by Nebraska residents diagnosed with NHL as well as a control group of residents without NHL in the same area, persons with NHL were twice as likely to be in the group consuming the highest levels of nitrate.

There is also some indication that nitrate contamination may be associated with increased rates of spontaneous abortions, and that there is a need for further assessment of the possible relation between ingesting nitrate-contaminated water and spontaneous abortion. Spontaneous Abortions Possibly related to Ingestion of Nitrate-Contaminated Well Water -LaGrange County, Indiana 1991-1994, 45 Morbidity and Mortality Weekly Report 26, Centers for Disease Control July 5, 1996, pp. 569-571. Excess nitrates in drinking water can cause fatal oxygen deprivation in infants; known as blue baby syndrome.

Hydrogen sulfide exposure may be associated with nausea, headaches, eye, throat and respiratory system irritation, and may aggravate asthma.

The need to carefully control the management of swine wastes arises also because of the possibility of transmittal of flu viruses from swine to humans. Diseases associated with swine management include strep suis type II meningitis, which can cause permanent hearing loss, leptospirosis, which can cause fever, headache, nausea, jaundice, conjunctivitis; swine influenza, which produces mild to severe respiratory illness; brucellosis, which causes fatigue, headaches, chills, fever and night sweats; encephalomyocarditis; eryspieloid; salmonellosis, which causes acute gastroenteritis; and hearing loss due to noise.

Significant health problems confront workers in confinement houses, including exposure to hydrogen sulfide gas, organic dust toxic syndrome, bronchitis, respiratory problems and brucellosis. Acute poisoning from exposure to hydrogen sulfide gas is a risk, where liquid manure is stored under a building and is agitated. Chronic exposure to aerosols is more prevalent. Studies of workers in confinement buildings indicate that upper and lower airways inflammation is common, manifesting itself as bronchitis, rhinitis, pharyngitis and sinusitis. Additional generalized symptoms among swine workers included delayed onset of fever, malaise, muscle aches, fatigue, and pains, thought to be associated with chronic agricultural dust exposure. Id.

Noxious gases formed during anaerobic decomposition of stored animal manures can pose a serious threat to the health and safety of both the worker and the animal. Carbon dioxide, hydrogen sulfide, ammonia and methane are the most important gases generated because of their well-known hazardous properties and the quantities produced. Exposure to high levels of these gases for even short period of time can produce acute responses both in animals and man which range from temporary irritation and discomfort to death. Daily exposure to lower levels of these same gases can present long-term health hazards for workers and production losses for animals.

Disposal of carcasses and manure can attract significant fly populations. Manure from confined animal operations is quickly adulterated with moisture and becomes the developmental medium for flies and other pests. These insects can be vectors of several diseases in humans. Populations of as many as 8,000 flies per square meter of manure and moisture mixtures have been trapped at confined livestock operations.

Insects carry microorganisms as they move about. Thus, there is the potential for insects to carry disease from one CAFO to another and from a CAFO to a nearby residential area. (USDA 2000).

III. Surface Water Pollution

Surface water pollution can come from a number of sources – chief among them, from impoundments that lack integrity and from excessive and inappropriate application of wastes and wastewaters to land. Application in excess of vegetative need causes water and air pollution, since a fraction of the nitrogen applied (up to 50) is not utilized and is transported through leaching, evaporation or runoff. Manure is rich in nitrogen and phosphorus, copper and zinc, since the animals don’t absorb all nutrients and constituents in the feed.

Swine manure has several components that can pollute water, including organic matter that increase biochemical and chemical oxygen demand and deplete available oxygen in streams, plant nutrients, and infectious agents.

Enough land area for manure application must be included in any nutrient management plan in order to assure that the crop nutrient removal rates for the land will meet or exceed the application rates in order to prevent buildup and runoff of nutrients (particularly phosphorus) beyond suggested agronomic and environmental levels.

Excess loading of available nitrogen into the environment is emerging as a significant global environmental problem. A new peer-reviewed report appearing in Ecological Applications (August 1997), Human Alteration of the Global Nitrogen Cycle: Sources and Consequences, notes that the doubling of the amount of available nitrogen, and increased movement of nitrogen from place to place, is responsible for increasing ecological disruption, contributing to greenhouse gas concentrations, damaging the ozone layer, and reducing biodiversity. Ammonia gases are a major source of nitrogen movement between ecosystems, and fertilizer and wastes contribute a significant amount of the ammonia reaching the atmosphere.

As with odor creation, much of the problem in surface water pollution arises from the utilization of land areas for disposal of partially treated wastes and manures where the uptake of nitrogen and other constituents of concern will not be complete. Most crops use only 50-70% of applied nitrogen fertilizer; the remainder is either transported by erosion or runoff, leached to groundwater, or transformed and lost to the atmosphere

Complete characterization of the waste, wastewaters and manure is needed to assure that any land application will not exceed soil and plant uptake. Sampling of the metals, salt, nitrogen, phosphorus, and micronutrient content of the manure is necessary to match the nutrients to crops needs, and to minimize the risk of runoff of excess nutrients as pollutants. Maximum application rates must be limited to that the estimated plant available nitrogen from all sources, including past-years credits from legumes and manure, commercial fertilizers, soil organic matter, irrigation water, and nitrogen deposited from ammonia.

Surface waters are also affected by the atmospheric deposition of ammonia off-gassed from lagoons, which is redeposited as acidic deposition nearby in streams. According to one report, University of North Carolina researchers found that as much as 1/4 of the nitrogen in waterbodies comes from rainfall, and a major source of the nitrogen is ammonia gas from animal waste lagoon and wastewater evaporation.

Excess nutrient loading into streams results in nuisance algal blooms, hypoxia (low oxygen levels) and anoxia (complete loss of oxygen), causing fish kills.

The determination of the appropriate rate of application of manure and wastewaters associated with confined animal facilities based on nitrogen, creates a real potential to overload land and water resources with phosphorus. Manure or compost application based on nitrogen needs of a crop can lead to significant soil accumulation of phosphorus, salt and other ions in the soil. There is a significant imbalance in manure and compost nitrogen to phosphorus ratios compared to plan N and P uptake. If manure or compost is applied to provide adequate nitrogen for a crop, the amount of phosphorus added to the soil in the manure or compost can be two to three times greater than the phosphorus needs of that crop, leading inevitably to P accumulation in the soil. This accumulation in turn increases the amount of dissolved P that is carried off in runoff, leading to algae blooms which deplete oxygen in waters. Id.

Phosphorus loading in waterbodies poses several threats to water quality. By relieving phosphorus limitation in waters, eutrophication is directly stimulated. Phosphorus loading has also been implicated in increases in frequency of toxic algae blooms in North Carolina’s coastal waters. Phosphorus loading in excess of relative needs can also create nitrogen limitation, favoring blooms of nitrogen-fixing blue green algae.

Waste lagoons also accumulate solids that are phosphorus-enriched, (Salley et al. 1993; Cahoon 1996), making disposal of accumulated solids a matter of concern.

Since manure application to soils at crop-recommended rates of N results in excessive application of P, the only responsible approach to reduce or eliminate adverse environmental effects and provide crop nutrients, is to use phosphorus-based application of manure and wastewaters.

In order to prevent accumulation of “salts” which can result in reduced crop yields, a chemical analysis of the manure for electrical conductivity (a method of estimating content of sodium, potassium, calcium) should be conducted. Once these are known, proper application rates to prevent build-up in the soils and imbalances in sodium-potassium to calcium-magnesium from causing crop yield reductions, can be established. Where repeated land application of liquid manure occurs, the “salts” and sodium content of soil should be monitored, in addition to metals.

The costs of improper management of animal wastes, both in terms of lagoon breaches and groundwater pollution, are potentially significant. Fish kills take an economic toll - in Missouri, lagoon spills have killed nearly 400,000 fish with an economic value of over 20,000$.

Waters which are nutrient-rich also appear to abet tremendous growth in populations of the microorganism pfiesteria piscicida, which has killed billions of fish since it was identified in 1991, and which some scientists believe has an adverse effect on human health.

Underfloor systems in which manure is stored in pits below slatted floors, retain a high percentage of nitrogen, phosphorus and potassium, and injection of the manure results in a much higher percentage of nitrogen available in the soil due to less ammonia release. These factors make proper management of rates of injection critical to prevent overloading of soils with nitrogen and phosphorus.

IV. Groundwater Contamination

Groundwater pollution often directly affects drinking water and can occur as contamination by bacteria, nitrogen and sometimes phosphorus The primary concern with phosphorus is not movement through soils to groundwater, but is instead the movement through soil erosion and runoff from precipitation or irrigation, increasing the P content of lakes and streams and leading to eutrophication, hypoxia and anoxia due to increased biological oxygen demand (BOD). The largest nutrient contamination concern for groundwater, however, is that of nitrogen leaching. Nitrogen leaches primarily as nitrate (NO3), an extremely mobile anion. High nitrate in drinking water has been documented to cause methemoglobinemia, or “blue baby syndrome” in infants under 6 months of age. The level to which groundwater becomes contaminated depends greatly on the circumstances in the crop production system, with the rate, method and timing of application of manure in the context of crop, rainfall and soil conditions, being critical considerations.

Nitrate contamination of subsurface water supplies is a significant public health concern for other reasons, since nitrate pollution has been linked to cancers of the stomach and urinary tract, and non-Hodgkin’s lymphoma as well as blue baby syndrome.

Significant issues that must be addressed include the characterization of the hydrological and geological setting. The fate and transport of contaminants must be evaluated, and characterization of wastes and wastewaters must include the fate of disinfectants, pesticides, antibiotics, hormones, heavy metals in feeds, bacteria, and viruses. Pigs are physiologically similar to humans, and disease can be passed back and forth. Subsurface chemical reactions, such as nitrification and denitrification, must also be evaluated.

Where land application is proposed as part of the disposal process for solid wastes or wastewaters, application rates, and the problem of long-term concentration of salts and metals in soil must be considered.

a. Soil Injection May Enhance Possibility of Groundwater Contamination

Injection of manure, used as a control strategy for limiting airborne release of ammonia nitrogen and other gases, can reduce the loss of ammonia nitrogen to the atmosphere, but may heighten the possibility of groundwater contamination by introducing manure with higher nitrogen content into void spaces created in the soil. Depending on the depth to groundwater, soil and subsoil characteristics, permeability and porosity of soil and bedrock, and rates of application and rainfall, and the presence of pathways such as old wells, groundwater contamination can result from soil injection, and must be addressed through proper characterization of the depth to groundwater, and site hydrogeology. The presence of a number of potential disease-inducing pathogens in animal manure, and trace antibiotics, make this form of fertilizer problematic from a groundwater contamination standpoint.

The possibility of groundwater contamination also exists from the containment systems used to store the manure, since cracks in containment vessels or piping through synthetic or clay liners may introduce untreated liquids into the vadose zone. Where earthquake hazard potential is significant, or the depth to seasonal high groundwater table is relatively shallow, consideration should be given to use of above-ground closed vessels rather than in-ground storage of liquid wastes.

b. Groundwater Risks From Anaerobic Lagoons

Odors, air pollution, potential for spread of disease, and water pollution are all associated with use of anaerobic lagoons for waste and wastewater treatment. KRC has advocated the elimination of use of anaerobic lagoons for waste or wastewater treatment and use of secondary wastewater treatment systems. Alternative waste management systems are available, and other systems are under study. See: Waste system takes the stink out of hog farming, The Farmer’s Pride, August 20, 1997. The EPA Small Flows program, which identified and promotes small-scale wastewater treatment alternatives for small and rural communities, described the spray irrigation approach to wastewater management as involving, typically, a septic tank (for solids removal), followed by aerobic treatment, filtration, chlorine or other disinfection (to destroy pathogens), and a piping system leading to above-ground application. Comparable treatment systems are feasible and fully justified given the intractable problems of odor associated with anaerobic systems.

Lagoon leakage can be a significant groundwater problem. One study evaluated 11 well-established swine waste lagoons systems in North Carolina’s coastal plain, finding 55% (6 of 11) to have moderate to severe seepage loss. In-ground lagoons should be discouraged, and should be allowed to be constructed only where there is a composite liner system with a leak detection layer capable of detecting any leakage through the liner, and where the hydrologic and geologic regime is such that no migration of wastewaters to underground sources of drinking water (aquifers capable of yielding water in usable quantities with a dissolved solid content of less than 10,000 ppm) would be affected before corrective action could be taken to remove the accumulated wastes and wastewaters in order to repair the leak.

A review of seepage risk associated with hog wastewater lagoon permitting in Kansas suggests that a coherent set of standards for permitting such facilities is needed, including consideration of high risk geological settings, soil borings, demonstrations of liner integrity and appropriate compaction of clay or bentonite layer of composite liners through appropriate testing, liner and side wall design standards, groundwater monitoring or leak detection systems to assure identification of any leakage or loss of structural integrity, and a demonstration of liner adequacy, and whole pond seepage testing.

Lagoon siting must provide for an adequate distance from the base of the lagoon liner to the seasonal high water table, and prevent siting in areas that drain to agricultural wells, drinking water wells. Prohibitions on location near parks, recreation areas, wildlife management areas; residences, or within the 100-year floodplain or flood fringe, and within or affecting wetlands, should be established.

Lagoon location in karst areas, which are underlain by limestone and where the dominant groundwater flow system is secondary, solution channel flow, should be prohibited, because of the vulnerability of the groundwater. Alternative treatment approaches which utilize above-ground systems which are lined and capable of leak detection at the source, rather than in-ground systems which have the potential for leakage, should be used due to the relative difficulty of monitoring releases, the rapid travel time in the event of release, and the vulnerability of the resource to contamination because of the lack of attenuation that the typical soil-subsoil profile provides.

Lagoon sizing should be sufficient to accommodate probable maximum precipitation event without failure or overtopping, and to accommodate seasonal demands where land application is inappropriate due to frozen soil conditions or soil saturation. Lagoons must be bermed in a manner that will prevent migration of wastewaters to waters of the Commonwealth in the even of structural failure of the containment, and a secondary containment structure must be available which is capable of holding 100% percent of the design capacity of the lagoon.

Lagoons which are utilized as part of the treatment train rather than for waste or wastewater storage pending disposal, should have influent and effluent monitoring. Wastewater proposed for land disposal should be subject to primary and secondary treatment to eliminate pathogens, and sludges should be treated to reduce pathogens prior to land application.

V. Land Application

Land application should not be utilized as an artifice for avoiding wastewater treatment costs by utilizing land as part of the treatment train. A fundamental distinction should be drawn between land application at agronomic rates of wastes and wastewaters which have been properly treated to address pathogens, at rates, amounts and times that are agronomically beneficial, and use of land resources as a method of indirect point-source discharges to waters of the commonwealth because nutrient loading far exceeds uptake, and cumulative loading of nutrients and metals creates potential for leaching into vadose zone and groundwater or surficial movement and stream contamination.

A comparison of spray irrigation systems for human waste, with the anaerobic lagoon - landspread approach for swine waste, indicates a gulf in wastewater treatment responsibility. For human spray irrigation systems, a septic tank or aerobic treatment unit is followed by a dosing tank (for storage), a filtration system, chlorination or other disinfection, and a piping system for above-ground application.

a. Soil Injection Requires Careful Planning And Management; Odors Remain A Concern Even Where Soil Injection is Utilized

The use of soil injection, if properly controlled, can reduce odor emissions from those typically associated with landspreading by tankers or spray irrigation, and can result in a better balance between phosphorus and nitrogen in the manure. Careful planning, choice of injection tools, and monitoring of concentrations relative to crop needs, are necessary to avoid creation of nuisance and adverse environmental conditions.

The loss of ammonium nitrogen as a fraction of the available nitrogen from surface spreading can result in availability of phosphorus and nitrogen in the manure that is out of balance with the crop needs and can result in buildup of phosphorus. Injection, if properly undertaken to assure control of any release on the soil surface, can conserve ammonium nitrogen and provide more balanced nutrient availability.

Liquid manure injection can reduce but does not eliminate odors. Actual field tests on injection odor conducted in Iowa in 1998 by Iowa State University documented odor reductions of as little as 50% and never greater than 75% compared to broadcast applications.

In order to reduce odor emissions and to conserve ammonium nitrogen, injection must be carefully managed in order to prevent release of the manure at the soil surface either from injecting at too high a rate for the conditions, or not having the injectors fully engaged in the soil and the beginning and end of the field before turning on the flow.

Additionally, if liquid manure is injected into the soil in concentrated subsurface bands rather than being properly distributed into the soil, there is likelihood, particularly under poor soil drainage conditions, for anaerobic decomposition with subsequent production of organic compounds toxic enough to stunt root growth of plants or even kill roots.

Liquid manure injection can result in significant odor emissions and nutrient losses when manure is not contained in soil but instead overflows to the soil surface. In order to assure no overflow manure, the manure management plan must identify the proposed injection tools and demonstrate that the injection tool meets the agronomic requirements for maximum nutrient benefit for the selected crops and that the tool capacity (and the void space created in the soil by the tool) is greater than the volume of manure to be injected. Other work underscores that the choice of tool type, injection depth, and extent of manure exposure, all affect the performance of injection relative to odor generation. The detailed study on Liquid Manure Application Techniques to Minimize Odours published by Ying Chen of the Department of Biosystems Engineering of the University of Manitoba, summarized the potential odor problems with injection of liquid manure, and explained why the choice of manure incorporation method, in and of itself, is not a panacea for odors:

Odour levels associated with land application of liquid manure are not directly related to the application method. That manure injection provides lower odour level than surface application is not necessarily true in some injection cases where excessive manure is exposed to the air as a result of poor injection operation or the use of an inappropriate injector. Odour levels are directly determined by the amount of manure exposed to the air and the surface area covered with exposed manure, if other conditions are the same. Injection may not reduce odour to a background level (equivalent to odour over an unmanured soil surface), even if it is properly done. Odour concentration at the ground level following manure injection varies from approximately double to 18 times higher than the background value, depending on the extent of manure exposure. The primary criterion for selecting an injector should be based on the tool capacity that must be sufficient in order to minimize exposed manure, and consequently odours. Other criteria should be also considered, such as the hose power requirement and manure distribution in soil.

Id. p. 1.

A detailed manure management plan is needed to determine whether the manure and associated liquids will be managed so as to prevent nuisance and pollution. The plan must include analysis of the suitability of the land for land application, including evaluation of soil and subsoil permeabilities, potentiometric mapping and identification of aquifers, evaluation of vulnerability of groundwater resources, soil slope, erodability, land use of proposed disposal site and surrounding land uses, existence of water withdrawals downstream of proposed disposal site.

The loading and cycling of nitrogen and phosphorus must be evaluated, in order to assure that application rates will not result in excess available nutrients. Limitations on application of manure or disposal of wastewaters should be established based on soil, slope and composition of wastes, to assure prevention of spreading or spray irrigation near areas of influence of sinkholes, wetlands, groundwater recharge areas, in proximity to surface waters; water wells, canals, occupied dwellings.

Buffer strips by all intermittent and perennial streams should be required.

Complete chemical characterization of proposed wastes and wastewaters should be submitted.

The applicant must include all necessary recorded manure easement agreements, and a manure loading plan. The manure loading plan should include the daily and annual gallons of animal waste that will be land-applied and the number of acres that have been designated to receive this waste, and shall also indicate how all other wastes generated by the facility will be managed to prevent pollution and avoid creation of nuisances.

The hourly application rates should be controlled and must uniformly be less than soil infiltration rate to prevent runoff. Crop yield goals and plant uptake of nutrients must be matched. In addition to limits on application for nitrogen and phosphorus, consideration must be given to prevention of accumulations of toxic concentrations of metals. Lifetime limits on land application are needed to prevent contamination of land and destruction of crop potential due to excessive elevations of these metals.

Appropriate limits, compliance with which must be documented by periodic soil tests, must be placed on individual and lifetime applications of manures, sludges and wastewaters for all potential pollutants of concern from an environmental or public health standpoint, including copper, zinc, nitrates, phosphorus, antibiotics, and enteric pathogens, roundworms, viruses and other biological contaminants of concern.

In order to minimize air and groundwater pollution, evaluation of partitioning of the nutrients must be included, identifying the fraction of the nutrients that will leach, volatilize, denitrify or be taken up by plants.

Management of manure, wastes and wastewaters during months when land application is inappropriate must be addressed. Storage losses to air and through runoff, of nutrients in manures can be significant.

VI. Setbacks Should Be Coupled With Affirmative Obligation To Demonstrate That Proposed Operation Is Designed And Sited To Prevent Nuisance Conditions

The use of setbacks as a mechanism for isolating odors, airborne toxics, disease-causing organisms and other air contaminants from neighboring properties and incompatible land uses, is a tool that should supplement other measures taken to prevent nuisances. Setbacks should continue to be required to assure prevention of water pollution, and to minimize disruption and interference with the use and enjoyment of other lands through isolation of facilities and their inherent odors and vectors from neighboring land uses, but should not be considered a sufficient stand-alone pollution control strategy. In addition to setback requirements, the operator of a confined hog facility should be subject to a general prohibition providing that:

No confined hog facility or any portion of the operation shall be allowed or permitted which will interfere with the reasonable use and enjoyment of the lands of another, nor become a nuisance due to the manner of construction, design or operation of the facility, or through the failure of the landowner or permittee to take remedial action as directed by the Fiscal Court, local public health agency or a court of competent jurisdiction, or failure to close the facility. The Fiscal Court is authorized to take necessary action, including forfeiture of the financial assurance or injunctive relief, to secure abatement of the nuisance in the event that the permittee fails to abate such nuisance after notice.

In establishing appropriate setback distances, varying distances are utilized by states and localities. According to an article in Environmental Health Perspectives, (December 1995), the National Pork Producer’s Association recommends new hog operations be located 1,500 feet from houses and 2,500 feet from schools, hospitals and churches. The research conducted by Schiffman at Duke University indicated that swine odors tend to drift in a plume that is not attenuated at significant distances, and which is offensive at extremely low concentrations. This is supported by other research and anecdotal evidence suggesting that odors are a problem at far greater distances that suggested above. Pettis County, Missouri, adopted a sliding scale of setbacks depending on the number of animal units, which had as much as 3/4 mile setback from a dwelling, and 2 mile minimum distance from a populated area (increasing by 1/4 mile with each 500 more animal units).

North Carolina’s legislature, in 1996, proposed a 1,000-to 1,750-foot property line setback, depending on size of operation, 1/4 mile to any waterbody (minimum), up to 1/2 mile for significant waterbodies (down to 500 feet if lagoon is concrete lined); 500 foot to any well, 100 foot to any ditch or swale; which setbacks may be expanded depending on location relative to the 100-year floodplain, soil type, location in watershed, nutrient sensitivity of receiving waters, slope, proximity to other pollutant sources, and parklands. In Lincoln Township, Missouri, setbacks depend on the lagoon storage and volume with 1 mile setback from dwellings for lagoons of greater than 20-acre feet.

Virginia Tech Professor Emeritus of Agricultural Economics J. Paxton Marshall recommended setbacks of 1 mile from any group facility and .5 mile from any residence for large swine facilities (100 to 250 breeding stock); and for industrial scale operations, (greater than 250 head of breeding stock) 1 mile from residences and 1.5 miles from any group facility, with the possibility of individual waivers if all owners within the prescribed distances waive such setbacks. Concerning soil injection systems, the technical literature indicates that, using the dilution-to-threshold or “DT” concentration of 2 DT as a background odor concentration level at which odor nuisance conditions are not created, a distance of 2,600 feet from the odor source is needed to achieve 2 DT for a 200-sow farm that utilized a scrape, storage pit and soil injection system (contrasted with 7,580 feet for a larger flush/lagoon/sprinkler irrigation system).

In developing setbacks and other regulatory requirements to prevent nuisance odors from affecting other landowners, the USDA (2000) cautions that “[o]f paramount importance to the success of present day [odor control] systems is to avoid overly optimistic assumptions in assessing manure production and treatment efficiencies in the design of storage, treatment and land disposal systems. Overly optimistic design assumptions in these areas have frequently been utilized to justify placing an operation on a particular parcel of land that is too small. These short-term expediencies result in operations that are more likely to lead to odor conflicts or environmentally unsustainable systems from a nutrient management perspective. Cost saving measures in site selection and facility design can lead to higher cost, including expensive retrofits and neighborhood conflicts in later years.” Id.

VII. Economic Impacts Associated With Large-Scale Swine Production Justify Prudent Regulation To Protect Public Welfare

Beyond the environmental and public-health concerns with intensive hog confinement facilities, there are a number of economic and social problems potentially associated with the introduction of intensive hog production facilities which should be assessed by the County in developing a regulatory framework for permitting and controlling the adverse effects of intensive hog operations. Among the powers and obligations of the counties are to regulate commerce for the protection and convenience of the public. There is strong evidence that the vertically integrated contract-based hog production operations may have a negative, rather than a positive, economic effect on local economies, with attendant negative social and health consequences for communities.

According to a University of Nebraska study, where 10% of the production is under contract, packers pay 6% less for hogs raised by independent operations. Where the industrial-scale operations have 50% of the production under contract, the sale price for the independents drops as much as 26%. A Virginia Polytechnic Institute study on the relative economic benefits of independent operations and vertically-integrated contract operations documented that the independent model of production of 5000 animal units produced 10% more permanent jobs, 20% more local retail spending, 37% more local per-capita income, than contract operations.

According to U.S. News and World Report (January 22, 1996) for every job created by a factory farm operation, 3 are lost. A 1994 study by University of Missouri economist John Ikerd estimated that while creating 9 jobs for every 12,000 hogs produced, factory farms displace 28 jobs (13 on the farm and 15 off the farm). Vertical integration means often that local suppliers of fuel, feed and farm supplies are shut out of the market and that the profits are shifted out of state.

Sociologists at Iowa State University, summarizing forty years and a dozen studies, concluded that “a change towards corporate agriculture produces social consequences that reduce the quality of life for rural communities.” A 1990 Study by sociologist Linda Labao found that “an agricultural structure that was increasingly corporate and non-family owned” tended to lead to population decline, lower incomes, fewer community services, less participation in the democratic process, less retail trade, environmental pollution, more unemployment and an emerging rigid class structure.

A study by Gomez and Zhang of Illinois State University indicated that large hog farms ten to hinder rural economic growth at the local level, with an inverse relationship between hog production concentration and retail spending in local communities. Palmquist, Roka and Vulkina (1998) indicated that large hog operations tend to depress sales value of nearby homes and real estate, with a loss of land values for farmlands and lands with dwellings confirmed by other studies.

Prior to amending local ordinances in order to accommodate new introduction of confined hog operations, an independent agricultural economist should be employed by the county to assess the short- and long-term impact of such operations on the economies of Hickman and Fulton Counties.

Principles For County Ordinances

The old adage “your freedom ends where my nose begins” was never more appropriate than when addressing industrial-scale hog waste management. The concentration of significant sources of nutrient-rich manure waste into a geographically compact area, and use of land areas for disposal of untreated manure wastes, is a legitimate matter for local government concern.

The Council believes that any ordinance addressing hog production operations should contain certain key elements:

1. Public notice and an opportunity for public hearing should precede any decision on permitting such facilities. The reviewing agency should be required to consider all public comments and to render a decision approving, conditioning or denying the permit, based on a determination of compliance with the regulations and a written finding that the proposed facility will be sited, constructed, operated and closed in a manner so as to prevent pollution and to assure that the facility will not become a nuisance to neighbors or the public.

2. Individual permits should be required for all hog production operations. The use of a “general permit” in which standard conditions are applied is inappropriate given the site-specific and facility-specific conditions that must be assessed in order to assure that air, land and water resources will be protected from pollution. The permits should require more detailed manure management plans as discussed above, demonstrating that the manure waste and wastewater will be managed so as to prevent nuisance and pollution. The manure management plan should be developed by a trained agronomic professional. The plan should include analysis of the suitability of the land for land application, evaluation of soil and subsoil permeabilities, potentiometric mapping and identification of aquifers, evaluation of vulnerability of groundwater resources, soil slope, erodability, land use of proposed disposal site and surrounding land uses, and existence of water withdrawals downstream of proposed disposal site. The applicant should be required to characterize the geological setting proposed for land application of wastes from such operations; including identification of any aquifer capable of beneficial use and quarterly monitoring or other data indicating seasonal water table elevation, quality and groundwater flow patterns;

3. Best available control technology, including filtering or scrubbing confinement building emissions, requiring covers if anaerobic lagoons are employed, and requiring injection or knifing of any liquids and solids which are landspread, should be required in addition to use of setbacks.

4. Odor control measures should be required for all phases of the operation, including controls on management of liquids and solids to minimize odor creation in confinement buildings, and ventilation and filtration of confinement building air, covering lagoons which rely on anaerobic treatment, considering separate management of liquids and solids, and covered manure storage tanks.

5. Immediate reporting of any releases or spills, leaks or groundwater contamination, should be required.

6. Berms should be constructed around fields accepting landspread wastes, to assure that no runoff contaminated with nutrients is discharged into streams or lakes.

7. Financial assurance that some funds will be set aside to assure proper closure of the facility and clean-up of any spills or releases) is needed. No permit should be approved for a confined hog facility without the posting of financial assurance and a non-cancelable insurance policy. The regulations should require that the bond and assurances be submitted prior to approval of any permit, in an amount should be sufficient to assure that the government can contract with a third party to do the necessary reclamation or remediation, and so should have a cost elevator of 20% above the actual cost of remediation. The obligation on the bond should be immediate, payable after a determination by the Cabinet that the permittee has defaulted on its obligations under the permit and regulations. Where there is a lapse of bond or insurance cessation of operations must occur within 30 days and closure must occur if a replacement bond has not been secured and posted.

The bond should consist of letters of credit or other collateral, including securities, provided that they are adequate in sum and are unsubordinated. No self-insurance, based on alleged net worth of the facility or owner, should be allowed.

The cost estimate should include two concepts: first, the requirement for posting financial assurance sufficient to assure that any releases from the facility and any damage to natural resources or property caused by any releases from the facility, including any soil, surface or groundwater contamination from leaks, spills and releases from the facility, can be remediated; based on worst-case scenarios for releases; and second, assurance that the facility can be properly closed and all structures and excavations, and including any lagoons or other wastewater treatment structures and appurtenances, removed.

The cost of remediation for off-site contamination will vary depending on the terrain, soil composition, depth to groundwater and other factors. Using a flat fee based on animal numbers potentially understates the likely cost of remedying contamination, the cost of addressing groundwater contamination from any lagoons.

8. There should be a requirement for maintaining liability insurance to pay any judgments or claims from third-parties that a nuisance has been created by the facility, and to pay any third-party injury claims or loss of property value.

9. Civil as well as criminal penalties should be provided. A requirement should be included that past compliance history of all owners and controllers of the applicant be disclosed, including violations in other states of air, waste and water pollution and public health laws, and a prohibition against issuance of new permits to any facility which has an outstanding unresolved violation of any air, land or water pollution law, or owns or controls or is owned or controlled by an entity with such outstanding violations, or which has forfeited a performance bond or otherwise demonstrated general obligation to prevent a pattern of willful or unwarranted failure to comply with the environmental laws of any state or community.

10. Responsibility for compliance with the county ordinance and for avoidance of nuisance conditions should rests with the owner of animals jointly with the operators. Any contract seeking to shift responsibility back to contract farmer or other third party void as against public policy. Owners/controllers should be jointly responsible for preparing and complying with the permits, even where they contract with others to raise the animals.

The imposition of responsibility for environmental compliance on the party contracting with the local producer is not without precedent, and is particularly appropriate in this case since the input and output decisions are largely dictated by the corporations and their integrators. The responsibility for environmental compliance should rest primarily with the corporation and integrators, and the regulations should prohibit any contract clause which attempts to shift that responsibility back to the farmer.

11. Consistent with the recommendations of the national pork producers workgroup, an operator certification program comparable to that provided for other wastewater system operators, should be developed to assure that minimum competency standards for operators of intensive swine production facilities are met.

Fulton County “General Permit” Weakens Ordinance 97-5

KRC was requested to review the “general permit” for swine feeding operations adopted by the Fiscal Court at the May 10 meeting, and to comment on the adequacy of the general permit conditions. After reviewing the permit in light of the provisions of Ordinance 97-5, and in light of the potential environmental and public health impacts of confined hog facilities, KRC has these observations and concerns:

1. It is unclear whether the “general permit” requires public notice

Fulton County Ordinance 97-5 provides for a public notice and opportunity for hearing. It is unclear, however, whether public notice and an opportunity for hearing would be provided under the “Fulton County Permit for Swine Feeding Operations” since, in order to be covered the applicant must provide a Notice of Intent along with a USGS map and must “apply for the attached permit[.]”

It should be clarified that any applicant seeking to operate under a general permit must publish notice in the local newspaper in accordance with Ordinance 97-5 and that a public hearing shall be held.

2. The scope of coverage of the “general permit” is inconsistent with Ordinance 97-5

Ordinance 97-5 applies to any “confined hog facility” in Fulton County. “Confined hog facility” is defined as including but not being limited to, “confined hog barns, farrowing houses, gestation barns, nursery barns, feeding floors, finishing floors, and hog waste holding ponds.”

In contrast, the proposed “general permit” applies not to “confined hog facilities” but instead to “all swine feeding facilities that confine, feed, stable or maintain [400 pigs over 55 pounds or 1000 pigs less than 55 pounds].

The basis for the distinctions drawn in the general permit are not apparent – it is unclear why a different definition of the facilities is used in the general permit than was used in the ordinance, or the basis for the 55 pound threshold. While KRC believes that the use of a “general permit” is inappropriate and substantially undercuts the purpose of Ordinance 97-5, if such a “general permit” is to be used, there should be some rational connection between the scope of the regulations and the ordinance that they purport to implement. The use of different terms and thresholds for regulation is of concern.

3. The “general permit” is inconsistent with the individual review contemplated in Ordinance 97-5

Ordinance 97-5 contemplates an individual permit process, where an applicant applies for a permit and after a public hearing the Fiscal Court makes a determination to issue or deny the permit based on a series of “[f]actors to be considered”, including “adverse effects, if any, on soil, air, water, and other natural resources as well as any such effects on neighboring property owners’ peaceful use and enjoyment of their own property or on the public in general.”

In order to make a reasoned determination under Ordinance 97-5, specific information on the nature of the proposed activity and its effects, and on the potential for impacts on neighboring properties and the public must, of necessity, be provided. It is apparent from the above technical discussion that the potential for generation of odors and for surface and groundwater pollution is very fact-specific, depending on the choice of management approaches, the soil conditions, and other variables. Yet the “general permit” does not require such an individualized submittal or evaluation of manure management plans, consideration of groundwater, nearby land uses, but instead establishes categorical setbacks, requires underground water tank structures, and requires injection or “trucking said waste to an approved facility.” If these conditions are met, the general permit is issued without the individual finding that meeting those requirements will meet Ordinance 97-5.

If the Fiscal Court believes that Ordinance 97-5 should be repealed or amended to replace the case-by-case approval contemplated by the 1997 ordinance with categorical approval of facilities meeting certain standards, then it should do so directly rather than by adopting a “general permit” that proposes an approach that is not consistent with and which undercuts the case-by-case approval contemplated in the 1997 ordinance.

If the use of a general permit is to replace individual review and findings, then the general permit must be revised to be consistent with the available science, to fully protect the public, and to provide appropriate clarity.

Among the changes that should be made:

a. There is no definition of an “integrated underground waste tank structure.” Since all swine feeding facilities are being required to have one, and since open ponds, lagoons and waste holding facilities are now being prohibited, some clarification should be provided as to what type of structure is sufficient and how such a system differs from an “open waste holding facility” since the deep pit systems are typically open rather than being fully contained. Additionally, specifications concerning the integrity of the structures, size, construction, and monitoring for leakage and air emissions should be included.

b. The general permit requires either that the solid and liquid manure waste be disposed of “by injection method land application” or “by trucking said waste to an approved facility.” It is unclear what is contemplated by “an approved facility.” For something as critical to surrounding lands as the manner of disposal of the manure, a phrase such as “approved facility” should be clarified.

c. The technical basis for the proposed setback requirements should be explained to the citizens of Fulton County, since the setback requirements are significantly less than the technical literature identifies as being necessary to protect against offsite impacts.

Setbacks should be sufficient to assure no offsite nuisance conditions or pollution, and since the general permit does not require any plans controlling the manner, rate and conditions of land application through injection, nor any requirement for filtering and controlling odors from the confinement facilities, neither the facility nor the injection area setbacks will be sufficient to prevent nuisances from being created.

Additionally, establishment of setbacks for water wells and water bodies at such small distances without case-by-case consideration of the slope, soil type, rate and manner of injection, depth and gradient of groundwater, will likely prove inadequate in many instances. In the absence of site-specific plans and controls, more conservative values are appropriate to assure protection of the public’s waters.

In sum, KRC believes that the general permit conditions are insufficient to address the potential offsite odor, surface water and groundwater contamination concerns associated with soil injection of manure and use of deep-pit underfloor holding tanks. KRC recommends that the general permit approach be repealed and that instead the county empanel a citizens advisory committee, with appropriate technical support, to develop regulations based on available science concerning the control of odors and prevention of land, air and water pollution, in order to assure that the public health and welfare is protected in the issuance of permits for confined hog operations.

Finally, from the information provided to KRC, it is unclear whether the proposed regulations, which create substantive rights and responsibilities and have the effect of amending an existing ordinance in scope and effect, were given all required readings and notice prior to adoption.

Hickman County Amendment Weakens Existing Ordinance 97-6

The three ordinances adopted in 1997 by Hickman County, taken together, establish several requirements for “confinement facilities for livestock or poultry and associated waste management facilities.” 97-4 does nothing more than make violations of existing state and federal law violations of the county ordinance punishable as a Class A misdemeanor, since it merely requires that any “confinement facility,” which is defined as confined hog barns, farrowing houses, gestation barns, nursery barns, feeding floors, finishing floors, poultry barns, layer barns, broiler barns, chick hatcheries, dairy loafing barns, milk barns, confined beef cattle structures, and animal waste holding ponds or lagoons” not be constructed or operated until it has been approved by the state Divisions of Water and Waste Management and EPA.

Ordinance 97-6 established a permitting process for “confined hog facilit[ies]” which include, but are not limited to, hog waste holding ponds or lagoons, confined hog barns, farrowing houses, gestation barns, nursery barns, feeding floors, and finishing floors, with over 500 hogs per farm or per farm operation.”

The ordinance requires an application signed by the owner and operator, containing a building blueprint, survey plat, adjoining property owners, manure management plan and runoff management plan. Public notice and a public hearing is required, with notice to each adjoining landowner. Financial assurance in the form of a surety bond or insurance calculated to include the cost of closure, groundwater monitoring, remediation of off-site contamination, is required. Setbacks are required of 1500 feet to property lines and 500 to roads from confinement buildings and waste treatment lagoons, and 2500 from any facility or waste treatment lagoon to a church, public or private school. Existing facilities operating within the previous 5 years were exempted unless ownership changed. 97-7 amended the transfer provisions to allow transfers of ownership within a family to be exempt.

Hickman County is contemplating amending Ordinance No. 97-6 to provide different standards for “deep pit” hog facilities, which are defined as including “but shall not limited to, confined hog barns, farrowing houses, gestation barns, nursery barns, feeding floors, and finishing floors, with over 500 hogs per farm or per farm operation, all of which rely upon deep pits underneath the facility for the disposal of animal waste.”

Among the standards for the “deep pit” facilities are a requirement for “injection of the waste” and a prohibition on “broadcast or spraying of the waste.” The proposed amendment to the ordinance weakens setback standards for both confinement facilities and injection areas in several respects, and eliminates the requirement for a detailed manure management and runoff management plan.

Among the questions raised by the proposed amendment are these:

a. What is considered to be a “deep pit” system? How deep must a deep pit be to qualify? Are there any design requirements for construction of the deep pit? Must the deep pit be impermeable, and how is that proven?

b. What if a facility relies on a deep pit and a lagoon or other storage facility?

c. Does the requirement for a blueprint for the building design include the deep pit?

d.What are the requirements for the “nutrient management plan” and why was the requirement in Ordinance 97-6 for a manure management and runoff management plan eliminated?

e. What is the technical basis for the change in setback requirements? Specifically, why do confinement facilities under existing 97-6 have a setback requirement based on property lines of 1500 feet, of roads of 500 feet and of 2500 feet from churches and schools, when facilities that have deep pit systems which require exhausting of odors from the deep pits in order to avoid injury to animals and workers, and thus are more likely to exhaust odors of concern, not required to respect property lines at all and can operate within 150 feet of a road.

What is the technical basis and literature support for the proposition that injection can occur within 500 feet of a home, 1,000 feet of a church or school or park, and 75 feet of a road without causing a nuisance, since the literature cited above shows that as few as a 200-sow operation using soil injection can cause nuisance odors as far distant as 2,600 feet? Where is the technical support for the proposition that soil injection, with no controls in the ordinance on rate, application conditions, soil type, slope, depth to groundwater, or other limits on the application provided that it is “injected” can be accomplished without impact as close as 100 feet from a waterbody and 200 feet from a well?

Section X provides that the applicant must show “enough adjoining land sufficient to maintain the injection of the animal waste from that facility” but provides no standard for measuring what “maintain” means. The applicant should be required to demonstrate, among other things, that there is enough land to support injection at an agronomically appropriate time and rate and in a manner that will not exceed soil concentrations of nitrogen, phosphorus, potassium and metals necessary to support crop needs, and will not cause nuisance odors nor contaminate surface or groundwater.

Finally, there is no rational basis for establishing an aggregate 20-barn permit limit for Hickman County. Attempting to set an arbitrary upper-bound limit is not a surrogate for properly scrutinizing and regulating each individual facility in order to protect against off-site nuisance impacts, and air, land and water pollution.

As is the case with the proposed changes to the Fulton County ordinance, KRC believes that the weakening amendments are inconsistent with the available technical literature concerning potential adverse environmental and public health impacts of confined hog facilities. KRC urges the Fiscal Court to empanel a citizens advisory committee, with appropriate technical support, to develop regulations based on available science concerning the control of odors and prevention of land, air and water pollution, in order to assure that the public health and welfare is protected in the issuance of permits for confined hog operations.

Cordially,

Tom FitzGerald
Director


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