Cures for Responsible Livestock
Production in Humboldt County

Harlen Hansen
Humboldt County Supervisor

Introduction

In a state like Iowa, with an economy heavily reliant on agriculture and related industries, it is expected that agricultural issues will be at the forefront of news and policy debates. Iowa, in the past several years, has wrestled with various agricultural issues resulting from the increased population in rural areas, public awareness and increased concerns of the environment, and the progression toward the use of large-scale livestock (hogs) production facilities.

One of the first recorded instance of agricultural nuisance is in the 17th century in England. William Aldred brought a nuisance action against his neighbor, who operated a pigsty near William's' home. The trial court ruled for William and the neighbor appealed, arguing that such facilities were necessary for the production of food and that" one should not have so delicate a nose, that he can not fear the smell of hogs." The appeals court rejected the argument and affirmed that the pig sty was a nuisance.

The court discussed four principles associated with a home that should protect and continue to represent society's standards for the comforts of the home: (1) habitation by man, (2) pleasure of the inhabitants, (3) necessary light, and (4) wholesome air. Iowa law, which was written in 1942, does not allow counties to zone any part of an agricultural related operation.

For most of the nations history, agriculture has been governed by principles of common law. In the past two decades, however, the state legislators have changed the law to protect the agriculture industry from financial risk from nuisance suites. In 1976, Iowa passed the right-to-farm legislation intended to shield farmers from nuisance suits, provided their facilities meet certain requirements. If a feedlot is in compliance with environmental rules and zoning regulations, there should be no need for a nuisance suit, because the rules would not permit nuisance-causing activity. Also, it protected the operator from a nuisance suit by a resident who acquired their land after the feedlots initial date of operation.

In 1982, the Iowa legislatures enacted another Right-To-Farm Law-Chapter 352, which allows landowners to petition their County Board of Supervisors to establish "agricultural areas" of 300 or more acres. After a county establishes an agricultural area, livestock operations within that area are immune from nuisance actions. One important characteristic of this protection is that time of possession does not matter; (you don't have to be first). Have to prove that the facility was operated negligently resulting in pollution; overflowing of land on-to plaintiff land.

In 1995, the Iowa legislature responded to increasing pressure from large livestock producers regarding the liability exposure faced under the common law of nuisance, and the Iowa legislature passed House File 519, which contained amendments to several agricultural-related statutes. The most significant and controversial being section 657.11, which provides that a person who has received all permits required to operate an animal feeding operation, functions under a presumption that the facility is not a nuisance. To overcome this presumption, the plaintiff must show by clear and convincing evidence that the facility constitutes a nuisance and is being operated negligently. This makes a successful litigation of a nuisance suit much more difficult for the plaintiff.

Iowa statute defines nuisance in Section 657.1, "Whatever is injuries to health, indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceeding may be brought to enjoin and abate the same and to recover damages sustained on account thereof."

The Iowa supreme court when considering a agricultural nuisance quoted the following passage;" the fact that a residence is in a rural area requires an expectation that the residence will be subjected to normal rural conditions, but not to such excessive abuse as to destroy the ability to live and enjoy the home, or such as to reduce the value of the residential property;.

The stated purpose of Chapter 657: to protect animal agricultural producers who manage their operations according to state and federal requirements from the costs of defending nuisance suits, which negatively impact upon Iowa is competitive economic position and discourage persons from entering into animal agricultural production. This section is intended to promote the expansion of animal agriculture in this state by protecting persons engaged in the care and feeding of animals. The general assembly has balanced all competing interests and declares its intent to protect and preserve animal agricultural production operations."

Under Iowa law, if all the permits required for animal feeding operations are obtained by the producer, it is assumed that the operation is not a nuisance."

This provision removes the common-law standard regarding priority of occupation. Now the hog factory can come next to you and if it has obtained all of the necessary permits, and therefore is conducting a lawful operation, it is not a nuisance!!!

With Humbodlt County winning a district court ruling and with the Supreme Court ruling coming most likely in January 1998, the legislature will discuss hog lot issues. These are some of the proposals circulating around the state capital building:

1. Ban earthen manure lagoons.
2. Spend $400,000 for more DNR inspections.
3. Overturn nuisance law suit protection.
4. Manure management plans based of phosphorous, not nitrogen.
5. State indemnity fund to protect counties from cleanup costs and abandoned facilities.
6. Banning spreading manure on frozen ground.
7. Ban spray irrigation of manure.
8. County control.

The big question is how much latitude the legislature will be willing to give in the concessions.

House File 519 was created by the Iowa legislatures in 1995. The law attempts to set size limits, create an indemnity fund for cleanup, and establish setback distances according to size, of hog confinements. The county government, specifically the County Board of Supervisors, felt that it was a weak attempt to protecting the local citizens rights of welfare, safety and protection of drinking water. I will outline what caused the board to create ordinances:

• Ordinances passed because of number of documented (146 out of a state wide total of 346) they are from 5 ft. to 400 ft. deep, many are not documented, or sinkholes
• Evidence of sickness documented as water related.
• Recent spills in Iowa and North Carolina.
• Protect our drinking water from infiltration of contaminants (e-coli and nitrates)
• Property values evaluation by Osceola County Board of Review (40% reduction within 1/2 mile, 30% 1/2 to 1 mile, 20% 1 to 1 1/2 miles, and 10% within 2 miles).
• Majority of citizens concerned about their health welfare and safety in accordance with Iowa County Home Rule Law.

County boards can only provide input to DNR if facility applies for DNR permit (625,000 lbs or more of hogs). Less poundage does not have to submit information to DNR, except manure management plan before land applying. Problems can be encountered with sites below DNR limit. If we as a county board of supervisors are encouraged by DNR to submit comments, how do we do that without obtaining meaningful information? This is why ordinance 22 was created. Ordinance 22 requires producers, with over 300,000 pounds of animal weight at any one time, to fill out an application form. Information required: owner, contractor, supplier of the pigs and all persons and corporations associated with the building and supervision of the facility. A manure management plan with lands identified and manure basement agreements. Details blueprints of the proposed buildings. And a signed statement by the owner that all information is correct.

HF 519 indemnity fund, provides funds for cleanup of DNR permitted sites, after county takes possession (2 year process). Provides for only on-site cleanup. No funds available for sites not DNR permitted. No funds to clean up a neighbors drinking water supply (off-site) nuisance protection stops the suing process. Indemnity fund has minimal funds (about $125,000 as of mid 1997) and one medium sized spill clean up costs would take most of that fund. County should not assume costs because of bankruptcy or not DNR permitted as the case in Cherokee Iowa. This is why ordinance 23 was created. The owner of the building and the owner of the pigs must provide financial assurance to the county, in the form of bonding, insurance, or self insurance, that the cost of closing this facility, because of bankrupt or a major spill is provided. That cost is determined by: adding up the total weight in the buildings at any one time and then, depending upon your manure storage system, you multiply that amount by a fixed dollar amount. A credit of 50% reduction is given if optional ground water monitoring wells are installed.

Example 4,000 finishing hogs = 600,000 pounds. Pit under slat manure storage system x $.50=$300,000 bond or insurance. 50% reduction for monitoring wells results in a bond or insurance of $150,000.00.

Example of insurance costs: 3,200 sow operation; insurance company requires re-rod both directions, 8 inches thick of concrete instead of 6 inches and polyurethane liner on outside of the pit. One million dollars worth of on and off site coverage costs are $5,500 per year or $0.09 increased production costs per pig.

HF 519 doesn't adequately address all problems and separation distances from water. Nor does it address the protection of all lakes, streams and our groundwater. Because HF 519 did not address these problems, we addressed problem locally through Ordinance 24. Producers will test water as a base test, apply for a permit to apply manure on lands. If there is a complaint, then water is re-tested and results compared. This holds owner of the land also legally responsible. It protects the producer if complaint is not valid.

HF 519 did not address odor emissions and potential health concerns of neighbors. Humboldt County did this in Ordinance 25 by controlling off-site emissions of hydrogen sulfide. This ordinance says that hydrogen sulfide emissions going off site can be a health danger to neighbors. We will use a hydrogen sulfide tester and determine the parts per million of hydrogen sulfide that is being emitted across the property line and at the complainants house. You can emit no more than 50 ppb, which is a OSHA standard.

30-35 of 99 counties have seriously looked at enacting similar Ordinances. Most will wait until after Iowa Supreme Court decision.

What type of farm system will we pass on to future generations? One that provides opportunity to own and control the land, businesses that work, build communities, and determine their own destinies. Or will we pass on a system more like the feudal system our ancestors left behind, where a few own and control everything and the surfs work for them. That is the choice. There is no question that the rural people of America would choose the first system.

Protections designed to preserve the family farm have been perverted to protect corporate swine factories and are actually driving the independent farmer out of business. But hog production can be carried out successfully while protecting the environment and benefiting the local community. If the hog industry fails to take a positive leadership role in solving the economic/social/environmental problems that we now face, public pressure will eventually force changes; no group is powerful enough to go against the public interest indefinitely.

It is my hope that the leadership of this country—from county official to state official to federal official—will be remembered as the leadership that fought to protect the environment and the family farm as we have known it, not the ones who helped destroy it.

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