Streamlined "no-permit” model ordinance developed for regulating concentrated swine feeding operations

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Streamlined "no permit” model ordinance developed for regulating concentrated swine feeding operations  Posted: August 10, 2005
An Ordinance Of the Fulton County Fiscal Court Providing
For Regulation Of The Siting, Construction, Operation,
And Closure of Concentrated Swine Feeding Operations

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, 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 Fulton 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 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 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, are necessary and desirable;

THEREFORE, after the date of enactment of this ordinance, any person who constructs and operates a concentrated swine feeding operation shall comply with the provisions of this ordinance.

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 Fulton County unless that person complies with the requirements of this Ordinance.

(b) 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.

3. Registration Required

(a) Prior to construction and operation of a concentrated swine feeding operation, each 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 swine, who owns the swine, or who exerts any control over the manner in which the facility is designed, constructed or operated, shall provide a written, notarized certification that the person has read this Ordinance and will comply with its requirements. For any parties who have contracted for the feeding and care of the swine, who own the swine, or who exert any control over the manner in which the facility it designed, constructed or operated, the written certification shall include acknowledgment that all signatories shall be jointly and severally responsible for assuring compliance with the requirements of this ordinance.

4. Plan Requirements

(a) Each concentrated swine feeding operation shall prepare and implement a manure management plan for management of the manure and associated liquids so as to prevent nuisance and pollution. The plan shall be designed and certified by a trained agronomic professional.

(i) The plan shall address the fate, partitioning, and transport of all constituents of concern associated with manure from concentrated swine feeding operations, and should consider the suitability of the land for land application, including evaluation of soil and subsoil permeabilities; and including 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, and the precautions that will be taken to prevent accumulations of manure in the injection zone causing anaerobic decomposition.

(ii) The plan shall include the identification of the land area that will be used for manure application over the life of the facility, and include easements or other demonstration of ownership or access to those lands sufficient to support the land application.

(iii) The plan shall be designed so 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 shall discuss the loading and cycling of nitrogen and phosphorus in order to assure that application rates will not result in excess available nutrients.

(iv) The plan shall also include 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. In addition to limits on application for nitrogen and phosphorus, the plan shall describe the measures to 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.

(v) 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.

4. Performance Standards And Requirements

(a) All confinement buildings shall be equipped with biofilters or other air scrubbing or filtration system sufficient to prevent dust and odor emissions from being released 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) 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, and designed to prevent uncontrolled releases or emissions from anaerobic decomposition.

(c) A minimum setback distance of 5,000 feet shall be maintained between any confinement building, manure treatment or 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.

(d) 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.

(e) 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.

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

(g) When the facility ceases operation, all waste management facilities shall be removed and reclaimed, and any soil or groundwater contamination shall be remedied.

(h) Each concentrated swine feeding operation shall maintain an insurance policy insuring against 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 providing coverage for any property damage resulting from the operation of the facility.

5. Enforcement

(a) Any person violating any provision of this Ordinance may be subject to a fine of up to $1,000. For the purposes of this Ordinance, each day that the operation remains in violation shall be considered a separate violation for purposes of computing any fine.

(b) It is the intent of the Fiscal Court that the requirements and provisions of this ordinance inure to the benefit of the citizens of Fulton County, and that this ordinance establish the standard of care for the conducting of such operations.

By Kentucky Resources Council on 08/10/2005 5:32 PM
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