Fulton County Approves Ordinance Regulating Confined Hog Operations

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Fulton County Approves Ordinance Regulating Confined Hog Operations  Posted: November 15, 2006
An Ordinance Of the Fulton County Fiscal Court Providing
For Regulation Of The Siting, Construction, Operation,
And Closure of Confined Hog Facilities

WHEREAS the Fulton County Fiscal Court is empowered and authorized by KRS 67.083 to enact ordinances and issue regulations governing control of animals and abatement of public nuisances; public sanitation and vector control; conservation, preservation and enhancement of natural resources including soils, surface and groundwater, air, vegetation and wildlife; regulation of commerce for the protection and convenience of the public; and management of solid wastes; and

WHEREAS, confined hog facilities can be significant sources of air pollution, odors, surface and groundwater pollution, and if improperly sited, constructed or operated, can create a public nuisance; and

WHEREAS, the need to carefully control the management of swine wastes is a matter of public health and sanitation concern because of the possibility of transmittal of flu viruses from swine to humans; and

WHEREAS, odors and gases within confinement buildings and emissions from confinement barns, underfloor pit systems and waste lagoons have been identified as major sources of ammonia and other noxious emissions, which must be managed and controlled to prevent the unreasonable interference with the use and enjoyment of the property of others; and

WHEREAS, excessive or inappropriate land application of wastes and wastewaters can cause surface or ground water pollution through leaching, evaporation or runoff of nitrogen, phosphorus, copper, zinc and other constituents of concern; and

WHEREAS, disposal of carcasses and of manure can attract significant fly populations; and

WHEREAS, surface waters may also affected by the atmospheric deposition of ammonia off-gassed from lagoons and redeposited as acidic deposition nearby in streams; and

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

WHEREAS, the costs of improper management of animal wastes on fisheries and natural resources are potentially significant; and

WHEREAS, nitrate contamination of surface and groundwater supplies is a significant public health concern, which has been associated with cancers of the stomach and urinary tract, as well as blue baby syndrome, spontaneous abortions and non-Hodgkin's lymphoma; and

WHEREAS, the Environment and Public Protection Cabinet, after several efforts to adopt comprehensive state regulations governing air, land and water effects of confined hog facilities, has failed to produce a durable regulatory framework that protects the rights of other property owners to be free from public health hazards and nuisances; and

WHEREAS, the Fulton County Fiscal Court has determined that confined hog facilities confining over 500 swine create a density of animal population and attendant waste management concerns that could pose a threat to surface and groundwater and to the peaceful use and enjoyment of the property of others, unless carefully managed, and that it is necessary to supplement the existing state regulation in furtherance of the County’s authority under KRS 67.083 to supplement minimum state standards as appropriate in furtherance of the purposes of that statute;

WHEREAS, the Fulton County Fiscal Court has determined that, pursuant to its authority to enact ordinances and issue regulations in performance of public functions, an ordinance supplemental to the regulations existing at the state and federal levels is both necessary and desirable; and

WHEREAS, the Fulton County Fiscal Court has determined that minimum standards for siting and operation of confined hog facilities, providing appropriate assurances that the siting, construction and operation of such facility will not cause a public nuisance nor threaten public health, safety and general welfare, nor be injurious to the rights of other property owners, are necessary and desirable;

THEREFORE, after the date of enactment of this ordinance, any person who constructs and operates a confined hog facility shall comply with the provisions of this ordinance.

Section 1. It shall be unlawful for any person (which includes an individual, firm, partnership, corporation, association, government agency, or business entity of any kind) to construct, establish or operate a confined hog facility in Fulton County, Kentucky, without first filing a registration containing the information and certifications required by this ordinance.

Section II. “Confined hog facility” as used in this Ordinance shall include, but not be limited to, hog waste holding facilities, 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 related structures and facilities for confining hogs which are to be constructed or operated by the same individual or entity, or under the control or ownership of the same entity on the same or adjoining properties, shall be included in the calculation of the number of hogs for purposes of the applicability of this ordinance.

Section III. Prior to construction and operation of a confined hog facility, the person proposing to construct or operate the facility shall file a registration with the Fulton County Clerk containing the information required by this ordinance and providing the financial assurance required by this ordinance. Each registration shall include a written, notarized certification that the person has read this Ordinance and will comply with its requirements. The registration shall be filed with the office of the Fulton County Judge/Executive, Fulton County Courthouse, Hickman, Kentucky, and shall contain the following information:

1. A blueprint showing building design configuration, both exterior and interior, dimensions and construction materials.

2. A survey plat prepared by a registered land surveyor of the real estate on which the proposed facility will be constructed as well as the surrounding area to show compliance with setback requirements hereinafter provided.

3. A list of names and mailing addresses of all adjoining property owners.

4. A manure disposal plan which shall: identify all recorded manure easement agreements, if any, that have been obtained for the facility, include the annual gallons of animal waste that will be land applied and the number of acres that have been designated to receive this waste. The plan shall be designed and certified by a trained agronomic professional, and shall include limits on the rate and amount of application so as to prevent buildup and runoff of nutrients (including phosphorus) beyond suggested agronomic and environmental limits. The plan shall require soil injection rather than land spreading of manure and include a description of the equipment that will be used for injecting the manure, and the timing and rates of injection. The plan must be kept on site and annually updated, and if requested by the Fiscal Court, a copy shall be filed with the Fiscal Court.

Where the facility is subject to the jurisdiction of the Kentucky Cabinet for Environmental and Public Protection, a copy of any management and disposal plans meeting these requirements which is developed for the Cabinet shall be deemed sufficient for purposes of this ordinance.

5. A statement of the responsible parties who will supervise the construction and operation of the facility.

6. A statement of a plan for runoff management of waste disposal.

Section IV. The completed registration shall be filed with the office of the Fulton County Judge/Executive. The applicant shall then publish notice of the filing in the local newspaper in accordance with KRS Chapter 424 at the applicant’s own expense and shall describe the nature of the proposed activity, the location of the proposed facility, and shall inform the public that the completed registration may be reviewed at the Office of the County Judge/Executive. In addition, the applicant must send written notice by certified mail to each adjoining property owner containing that information.

Section V. No person shall operate a confined hog facility without first providing to the Fiscal Court a copy of an insurance policy for the facility in the amount of one million ($1,000,000) dollars, and including a minimum amount of twenty-five thousand dollars ($25,000) of pollution liability coverage. The insurance policy shall provide coverage for third-party claims related to personal injury or property damage resulting from the operation of the facility, and shall additionally specifically provide up to twenty-five thousand dollars ($25,000) of coverage in the event that the owners or operators of the facility, after notice and a reasonable time in which to comply with a request from a state or federal agency or the Fiscal Court, fail to properly close the facility by disposing of all manure stored on-site and cleaning or removing all above ground structures and manure storage pits; or fail to remedy contamination of surface water or groundwater when ordered by a state or federal agency. The policy shall provide that the insurer will pay the actual costs of such closure and remediation up to the amount of coverage or, at the insurer’s option, that the insurer may contract for timely completion of those activities.

The insurance must be effective before the initial receipt of hogs at the operation. Each facility must maintain the policy in full force and effect until after closure of the facility. The insurer must be authorized to transact the business of insurance in Kentucky. The policy must provide that the insurer may not cancel, terminate or fail to renew the policy except for failure to pay the premium. If there is a failure to pay the premium the insurer may cancel the policy by sending notice of cancellation by certified mail to the facility and to the Fiscal Court one hundred-twenty (120) days in advance of the cancellation. If the insurer cancels the policy, the facility must obtain alternate financial assurance or cease operations until such time as coverage is obtained and filed with the Fiscal Court.

Section VI Groundwater Protection & Leak Detection

The facility shall install groundwater monitoring wells with at least one well located upgradient, and two wells located downgradient from the manure containment facility, and shall annually report to the Fiscal Court, using EPA approved methods and procedures for chemical analysis, the results of water sampling conducted quarterly for the following chemical constituents:

Total Alkalinity
Total Kjeldahl nitrogen
Total Dissolved Solids
Chemical Oxygen Demand
Total Organic Carbon

The facility may substitute a leak detection system or vadose zone monitoring devices for groundwater monitoring wells. This monitoring plan shall be certified by a professional engineer as being located, designed and maintained so as to detect any leakage from the manure containment facility or contamination of groundwater from such containment. If vadose zone monitoring or leak detection is substituted for groundwater monitoring wells, the owner / operator shall monitor quarterly and report annually as to whether any leakage has been detected and if so, shall conducted water quality sampling for the parameters described above and shall submit that information to Fiscal Court.

Section VII.

1. Confined hog facilities shall be located at least 2,000 feet from any dwelling not owned or leased by the facility; 300 feet from any public roadway; and 2,500 feet from any church, school, playground, park, or other public facility; and 5,000 feet from the city limit of any incorporated city. Should the owner of any affected property give written consent to a lesser setback requirements, then the setback may be adjusted to that lesser distance and the agreed upon distance reflected on the survey plat with a copy of the written consent filed along with the plat as part of the registration.

2. Distances will be measured from the nearest corner of the building or structure to the nearest point of the adjoining property.

3. All registered confined hog facility shall utilize soil injection, rather than surface spreading and incorporation, for any manures and wastewaters proposed to be land-disposed. No manures or wastewaters shall be applied to lands in excess of the agronomic needs of the crops proposed to be grown on that land and said manure shall be injected a minimum of two inches (2’) from the surface.

4. Manure shall be collected and treated in an underfloor, covered lagoon or contained vessel system, lined and constructed to prevent leaching into soil or groundwater. There shall be no open pond, earthen manure storage lagoons in Fulton County, Kentucky.

5. Buffer strips that will be left by all intermittent and perennial streams. Buffer strips shall be vegetated and shall be at last 25 feet in width. A berm sufficient to retain runoff from a 10 year, 24-hour storm event may be substituted.

6. Adequate ventilation and other precautions shall be taken to prevent health problems from worker exposure to hydrogen sulfide and ammonia.

7. When the facility ceases operation, all stored waste shall be removed and properly disposed of, and the facilities shall be cleaned or destroyed. Any soil or groundwater contamination at levels above those established by the Environmental and Public Protection Cabinet as being indicative of soil or groundwater contamination shall be remedied and the completion of such remediation shall be certified by a qualified professional.

Section VIII. If any section, provision, or part of this Ordinance shall be adjudged invalid or unconstitutional, such adjudication shall not affect the validity of the Ordinance as a whole or any section, provision, or part thereof not adjudged invalid or unconstitutional.

Section IX. The County shall have the right to inspect such facilities to insure compliance with provisions of this Ordinance.

Section X. Any person as defined herein violating the provisions of this ordinance shall be guilty of a Class A misdemeanor. Each day of violation shall constitute a separate offense.

Section XI. All confined hog facilities in operation as of _______ shall be exempt from the Ordinance unless a change in ownership, control or operation will cause the scope of that particular operation to increase more than twenty (20) percent. The ordinance shall apply to all facilities constructed after the enactment of the ordinance, including expansions of existing facilities.

Section XII. Any person with an ownership interest or operational involvement in the proposed operation, including any person that has contracted for the feeding and care of the hogs, who owns the hogs, or who exerts any control over the manner in which the facility is designed, constructed or operated, shall be considered jointly and severally responsible for compliance with the terms of this ordinance in accordance with the principles of the law of agency, and the Fiscal Court may seek appropriate injunctive or other relief as against such person or persons for any violations of or failure of the facility to comply with the terms of this ordinance.

Section XIII. This Ordinance is adopted pursuant to KRS 67 in that it was published in summary form on the __________day of _____________, 1005 and was introduced and read on the _____________day of _________________, ______________ and said Ordinance shall be in full force and effect upon signature, recordation and publication in summary pursuant to KRS Chapter 424 and KRS 67.

By Kentucky Resources Council on 11/15/2006 4:43 PM
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