Model Confined Swine Feeding Ordinance Developed

Posted: August 9, 2005

WHEREAS the [ ] 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, concentrated swine feeding operations 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 concentrated swine feeding operations, 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 { } County Fiscal Court has determined that confined swine feeding 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 Environment and Public Protection Cabinet has adopted regulations which fail to provide in many areas an adequate degree of assurance of protection of the rights of other property owners to be free from public health hazards and nuisances; including inadequate geological or hydrologic information to support design and siting assumptions; inadequate public notice and an opportunity to be heard; allowing swine feeding facilities linked by common ownership or control to avoid regulation as a common enterprise, fail to require a cumulative assessment of the impact on watershed or groundwater resource; does not adequately consider soil permeability and groundwater flow systems in determining site suitability; fails to provide adequate setbacks to prevent nuisance odors; fails to require construction designs for pits and lagoons to be demonstrated to be impermeable, fail to require in-place testing of liner permeability, requires no baseline seasonal groundwater quality and quantity monitoring to determine nature, flow, extent of groundwater resource, resulting in inadequate groundwater monitoring plans; requires no groundwater analysis for zinc and copper; fails to require groundwater data to be submitted to the state and available to the public; fails to provide a meaningful standard or responsibility to prevent odors causing a nuisance; requires no instream monitoring; requires no bonding, liability insurance, or closure fund; and

WHEREAS, the [ ] 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 [ ] County Fiscal Court has determined that a permitting process should be developed for concentrated swine feeding operations, 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;

WHEREAS, the [ ] County Fiscal Court has determined that concentrated swine facilities confining over 500 swine create a density of animal population and attendant waste management problems that could pose a potential threat to surface and groundwater, and to the peaceful use and enjoyment of the property of others, 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; THEREFORE, after the date of enactment of this ordinance, any person who intends to construct and operate an concentrated swine feeding operation shall first obtain a permit from the [ ] County Fiscal Court meeting the requirements of this ordinance and authorizing the construction and operation of such a facility.

1. Definitions

For the purposes of this ordinance:

(a) “Concentrated swine feeding operation” shall include any operation that confines 500 or more swine at any one time. All related structures and facilities for confining swine which are to be constructed or operated by the same individual or entity, or under the control or ownership of the same entity, shall be included in the calculation of the number of swine for purposes of the applicability of this ordinance, and all such structures or facilities located in the County under common ownership or control shall be deemed related for purposes of calculation without regard to spatial distance between each structure or facility.

2. Applicability

(a) After the date of adoption of this Ordinance, no person shall construct or operate a concentrated swine feeding operation within the boundaries of [ ] County unless that person has first obtained a permit from the [ ] Fiscal Court or its designee authorizing the construction of the facility and establishing the terms and conditions of construction, operation, and closure of the facility.

(b) The permit shall contain those conditions necessary to assure protection of the property rights of nearby landowners and to assure conservation of and protection of the natural resources of the County.

(c) This ordinance does not apply to existing facilities that have been constructed prior to the effective date of this ordinance and which hold all air, waste, water and other permits and authorizations needed for operation of the facility. The ordinance shall apply, however to any expansions to those facilities.

(d) The permit application shall be signed by all persons who will have an ownership or operational involvement in the proposed operation, including any parties that have contracted for the feeding and care of the swine and who exert any control over the manner in which the facility is designed, constructed or operated. All signatories shall be jointly and severally responsible for assuring compliance with the requirements of this ordinance.

3. Contents of Permit Application

(a) The permit application shall provide the following information:

(1) A detailed manure management plan, designed and certified by a trained agronomic professional, demonstrating that the manure and associated liquids will be managed so as to prevent nuisance and pollution. The plan should address the fate, partitioning, and transport of all constituents of concern associated with manure from concentrated swine feeding operations

The plan must include:

(i) analysis of the suitability of the land for land application, including evaluation of soil and subsoil permeabilities;

(ii) mapping and identification of the depth and extent of local aquifers,

(iii) evaluation of vulnerability of groundwater resources;

(iv) soil slope, erodability, and land use of proposed disposal site and surrounding land uses;

(v) existence of water withdrawals downstream of proposed disposal site;

(vi) a description of the equipment that will be used for injection, the rate of injection, the procedures to be used to prevent releases of manure before the injector is fully engaged in the soil, the precautions that will be taken to prevent accumulations of manure in the injection zone causing anaerobic decomposition;

(vii) identification of the land area that will be used for manure application over the life of the facility, with a copy of the easements or other demonstration of ownership or access to those lands sufficient to support the land application;

(viii) a demonstration that the rate and manner of application will not exceed crop nutrient removal rates for the land in order to prevent buildup and runoff of nutrients (including phosphorus) beyond suggested agronomic and environmental levels. The plan should discuss the loading and cycling of nitrogen and phosphorus in order to assure that application rates will not result in excess available nutrients.

(ix) Proposed limits on application of manure or disposal of wastewaters based on soil, slope and composition of wastes, and how the applicant proposes to protect areas of influence of sinkholes, wetlands, groundwater recharge areas, in proximity to surface waters and water wells. 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.

(x) In addition to limits on application for nitrogen and phosphorus, the applicant should address what measures will be taken to prevent accumulation of toxic concentrations of metals including copper, zinc, antibiotics, and enteric pathogens, roundworms, viruses and other biological contaminants of concern.

(xi) Buffer strips that will be left by all intermittent and perennial streams. Buffer strips shall be a minimum of 25 feet and may be required to be wider depending on slope, amount of area drained, and vegetation and soil type.

(2) A groundwater protection plan, including

(i) Characterization of the geological setting proposed for land application of wastes from such operations; including identification of any aquifer capable of beneficial use,

(ii) quarterly monitoring or other data indicating seasonal water table elevation, quality and groundwater flow patterns,

(iii) proposed location and construction information for the groundwater monitoring wells, piezometers or other methods to be used to detect any migration of contaminants from the intended soil horizons from land application, and to detect any breach of containment of the holding pit;

(3) A cumulative hydrologic assessment of the loading of nutrients and other pollutants of concern from the proposed facility on receiving waters, with consideration of baseline loading and maximum daily loading that the waterbody can sustain without degradation or violation of water quality standards;

(4) A description of the measures that will be taken to prevent health problems from worker exposure to hydrogen sulfide and ammonia.

(5) A closure and corrective action plan including a description of the measures that will taken to close the facility and to remove all structures and manure pits and other facilities, and to remediate any contamination, and including a cost estimate.

4. Performance Standards And Requirements

(a) All confinement buildings shall be equipped with biofilters or other air scrubbing or filtration system demonstrated to be effective to control dust and odor emissions from the building.

(b) Soil injection, rather than surface spreading and incorporation, shall be used 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.

(c) In addition to other reporting obligations imposed by law, the permittee shall report any releases or spills, leaks or groundwater contamination within 1 hour of discovery, to the Office of the County Judge Executive.

(d) A minimum setback distance of 5,000 feet shall be maintained between any confinement building, manure storage facility and soil injection site and the nearest property boundary of any individual or person who has not consented to such activities and facilities at a closer distance.

(e) The setback distance may be reduced upon a demonstration by the applicant that other measures will be employed, to reduce odors, airborne toxics, disease-causing organisms, and other air contaminants in order to protect against creation of nuisance conditions on neighboring properties and to assure prevention of water pollution.

(f) No confined swine facility or any portion of the operation shall 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.

5. Financial Responsibility

(a) The application shall include evidence of financial responsibility, including a copy of a non-cancelable insurance policy in an amount sufficient to assure that any releases from the facility and any damage to natural resources or property (public or private) 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; and shall be sufficient to assure compensation third parties if a judgment is entered that loss of market value of adjoining properties has resulted from with the operation of the facility.

(b) The applicant shall also provide a bond or other surety in an amount sufficient to assure that, in the event of permittee default on operational and closure obligations, the county will have sufficient financial resources to perform necessary closure and corrective action activities.

6. Information Submittal

(a) To the extent that the applicant has provided plans to the Environment and Public Protection Cabinet or other agency which satisfy any of the requirements of this Section, that information may be attached to the application for permit and reference made thereto.

(b) The Fiscal Court reserves the right to require additional information as may be deemed necessary to allow for a reasoned determination of whether the proposed construction and operation will be consistent with this ordinance.

7. Background Compliance History

(a) The application shall identify the parties who will be responsible in whole or in part for the construction and operation of the facility, and including all persons identified in Section 2(d) and shall provide the past compliance history of such persons, and of all key personnel, with state, federal and local environmental and public health statutes and regulations for this and other facilities owned, operated or controlled by the applicant or under common ownership or control.

(b) “Key personnel” shall have the same meaning as provided in KRS 224.01-010; and the background information shall be the same as required by KRS 224.40-330(2)(b).

(c) The Fiscal Court may deny a permit to an applicant where the information demonstrates a pattern of behavior evidencing willful failure to comply with state, local or federal environmental laws concerning air, land or water pollution in this or related fields.

(d) No permit shall be issued to any facility where the applicant, owner or operator of the facility 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 until such violation is resolved to the satisfaction of the issuing agency, nor shall a permit issue where the applicant, owner or operator has forfeited a performance bond or otherwise demonstrated a pattern of willful or unwarranted failure to comply with the environmental laws of any state or community.

8. Public Notice And Information

(a) The applicant shall arrange for a complete copy of the application and all supporting information to be placed on reserve at the time of filing of the application, with the local public library, and shall maintain the file in current fashion. All monitoring and other data required to be submitted by state, federal and local laws shall be copied to that file.

(b) At the time of filing an application, the applicant shall cause to be filed in the newspaper of largest circulation of the county, a notice of the filing and a description of the proposed activity and location of the proposed activity. Additionally, notice shall be provided by certified mail to all adjoining and second-tier neighbors of the confinement facility and of any lands on which the manure will be disposed.

(c) A public hearing will be scheduled at a time and place convenient to the public, for receipt of information and comments concerning the proposed operation, and affirmative written response will be given to those comments received at the time of the permit issuance decision.

9. Fiscal Court Review And Decision

(a) After consideration of all public comments received and on the basis of the information provided by the applicant, and of any consulting agricultural engineer or other technical consultant report, (which shall be included in the public record), the Fiscal Court or its designee shall render a decision approving or denying the permit, with appropriate conditions.

(b) The decision shall be based on a determination of compliance with the regulations and shall include written findings that the proposed facility will be sited, constructed, operated, monitored 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.