Confined Feeding Laws in Indiana
Philip R. McLoud, P. E. Indiana has had a permitting procedure for confined feeding operations since 1971. These procedures were originally administered by the Indiana Board of Health and more recently by the Indiana Department of Environmental Management (IDEM). The permitting procedures administered by IDEM were never issued as promulgated rules but for the last 26 years have been "guidelines" for a livestock producer to follow in addressing water quality concerns from his or her farm. In reality, the guidelines were generally treated as rules both by IDEM and the regulated agricultural community. Enforcement of the guidelines continued with a minimum of controversy and varying degrees of success for 20 years. The Confined Feeding Law passed in 1971 required any livestock operation with at least 300 cattle, 600 swine or sheep or 30,000 fowl to receive a letter of approval from IDEM prior to beginning construction of the facility. The primary requirements of the IDEM guidelines, based on the 1971 law, were storage of manure, minimum separation distances from water bodies and minimum spreading areas for manure. In 1992 IDEM decided to revise and update the guidelines for the Confined Feeding Law. Again, IDEM decided against the issuance of rules but decided to continue with "guidelines". Revision of the guidelines was undertaken with the assistance of a committee of interested parties organized by Purdue University. The committee consisted of livestock producer groups, farm organizations, extension specialists, and the Natural Resources Conservation Service. Environmental organizations were invited to attend but did not. The confined feeding industry had not yet been detected on the radar screen of the environmental activist community. The changes which resulted from the 1992 revisions addressed concerns that IDEM had about the length of storage periods and added information on manure production and spreading areas to make the preparation of plans and plan approval more uniform. The required storage period was increased from 90 days to 120 days. The required land for spreading manure was based on providing 150 pounds of available nitrogen, with average values provided for nitrogen contents of various types of manure. Attempts were made to incorporate increased separation distances into the guidelines. However, it was pointed out to IDEM that their legislative authority addressed only water quality concerns. It was eventually decided that the existing separation distances adequately addressed water quality. The most important of these separation distances requires "at least 300 feet from any stream, ditch or other body of water" for earthen waste holding facilities. The changes in 1992 were not radical by any means, but they did make enforcement of the Confined Feeding Law more practical and effective. With the issuance of the new guidelines, IDEM undertook a renewed effort to gain compliance with the Law. In the previous 20 years, compliance with the existing rules was spotty at best and IDEM lacked the personnel to undertake widespread enforcement. With the new guidelines IDEM worked with producer groups, farm organizations and others to publicize the need for compliance with the Law. This effort produced, if not a flood, at least a swift stream of applications from existing operations without approval letters and a renewed awareness from new operations of the need to get approval from IDEM prior to construction. After some initial problems with handling this increased workload, IDEM eventually accommodated their approval processes and things began once again to work smoothly. This happy state of affairs was interrupted however by the changes in the pork industry. Indiana has a lengthy history in pork production. It has long ranked near the top of pork producing states in the nation. It has achieved this position with many relatively small producers. During the 1990's Indiana's pork industry has begun to change along with the rest of the nation. The number of hog farms in the state has steadily declined while the number of hogs has declined only slightly. This implies that the average number of hogs per farm is increasing. Thus far, Indiana has not seen an influx of the large integrators. The increase in size of operations seems largely to have come from existing operations expanding to compete nationally. Had this steady change in the pork industry continued quietly within the state, things might not have evolved the way they eventually did. But that is not what happened. The pork industry in North Carolina went from one of insignificance to number 2 in the nation within 10 years. A large anaerobic lagoon in eastern North Carolina failed, causing a fish kill. Sixty Minutes did a segment on the pork industry in North Carolina and suddenly the confined livestock industry was on the radar screen of the environmental community. Back home in Indiana, reverberations were felt from these occurrences far away. One of the requirements of the Indiana Confined Feeding Law is public notification of a pending confined feeding approval to allow neighbors to object to the approval. In the past, appeals of approvals were infrequent, and few if any had ever succeeded. In 1996, 2 significant appeals were filed against facilities proposed in the state. The appellants were well organized and presented convincing arguments against the proposed facilities. They publicly pointed out what they felt were inadequacies in IDEM requirements and the system for issuing approval letters. While these appeals wound their way through the administrative court procedures, IDEM convened a "task force" to consider the issues, which were being publicly thrown about. The task force listened through several sessions of accusation and counter-accusation between those opposed to the livestock industry and those representing the livestock industry. The main issues put forward were:
While IDEM's task force listened to those for and against the confined livestock industry, the state legislature took matters into its own hands. Legislation was introduced to change the Confined Feeding Law passed in 1971. This of course, brought out the same competing interests, which were arguing before the IDEM Task Force. Eventually a compromise bill was crafted and passed. As a compromise, the bill reflected the interests of both the environmental community and the livestock industry and probably did not satisfy either one. It did however set in motion a process to revise the way approvals are made for confined livestock feeding operations in the state. The main changes that the bill made are:
While these changes were taking place in the legislature, IDEM and the livestock industry lost its first major appeal of an approved confined feeding operation. In September of 1997 an administrative law judge vacated an approval letter previously issued to a group of producers who had begun building a farrowing and nursery facility. One of the judge's major reasons for vacating the approval was her determination that an 8 inch subsurface drain constituted an "other body of water" as defined in IDEM guidance documents. This ruling sent a shudder through the agriculture community, since there are very few places in Indiana which are suitable for the construction of an earthen waste storage facility that are also more than 300 feet from a subsurface drain. All of these activities have been covered avidly in the press. Local papers have covered activities for and against proposed facilities in their localities. The agricultural press has followed all the developments, which will affect the status quo of the livestock industry. A reporter for an Indianapolis newspaper has conducted a 6-month investigation to look for problems in IDEM's approval procedures and other problems in the livestock industry. Against this backdrop of charge and counter charge, press coverage and legislative mandates, IDEM is attempting to update its procedures to insure that the environment of the state is protected while the livestock industry in the state continues to be viable. The 1997 legislation required IDEM to "… update the department's guidance document concerning design and operation standards for confined feeding operations before January 1, 1998." To accomplish this job, IDEM has appointed a new task force of technical experts from agricultural organizations, environmental groups, academic, and government agencies. Because of the January 1998 deadline, IDEM has undertaken a two pronged strategy to meet the requirements of the legislature. The first is to make relatively minor changes to its guidance document, AW-1, and to adopt the design standards and construction specifications of the Natural Resources Conservation Service as the design and construction standards to be used by IDEM. The second part of this strategy is to use the task force to draft promulgated rules. The rules will have the force of law and will govern the permitting of confined feeding operations in the state. The adoption of rules will address a major complaint, which has been leveled against IDEM by those opposed to the livestock industry. The opposition has repeatedly charged that the current guidelines are not enforceable. The concern with rules is that they need to be written to allow the best technology to be used to address individual situations. As of this writing, the work of the task force has just begun. Because of the divergent interests which are represented on the task force the job will not be an easy one; however it is one, which needs to be done well. The livestock industry is an important economic factor in Indiana. Equally important is the environmental health of the state. As rules are written in the coming months these two major interests will have to be balanced. Some of the issues, which I think the task force, will deal with are:
These and many other questions will be dealt with in the rule making process. Many have been dealt with in other states and many may be dealt with on a national level and this may aid us in coming to decisions in Indiana. It is my hope the final rules are well founded technically and will protect the environment of the state while maintaining a viable livestock industry within the state.
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