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Model CAFO Regulatory System, June 1998
Sections 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
Section 1. DEFINITIONS
"Concentrated animal feeding operation" means an agricultural facility where
500 or more animal units are confined and fed or maintained for a total of forty-five days
or more in a twelve-month period and crops, vegetative, forage growth, or post-harvest
residues are not sustained in the normal growing season over any portion of the lot or
facility. Structures used for the storage, handling and transport of animal waste from
animals in the operation also are part of the concentrated animal feeding operation. Two
or more concentrated animal feeding operations under common ownership or management are
considered to be a single operation if they are adjacent or utilize a common system for
animal waste storage. - Animal Units (au):
1 au = 1 beef feeder animal, or
2.5 swine over 55 lbs., or
30 laying hens, or
100 broiler chickens, or
55 turkeys.
- "Animal waste" means animal excreta or other commonly associated organic
animal wastes including, but not limited to, bedding, litter, feed losses, or water mixed
with the waste.
- "Animal Waste Management Plan" (AWMP) means a written plan that includes a
combination of conservation and management practices designed to protect the natural
resources of the state prepared by an owner or operator of a concentrated animal feeding
operation as required by the Department pursuant to the provisions of Section 4 of this
title. The Required Elements of an AWMP are specified in Section 3.
- "Department" means the Department of Environmental Management.
[NOTE: substitute the name for your state environmental regulatory agency.]
SECTION 2. Concentrated animal feeding operations Are
"Industrial Facilities"
Poultry and swine concentrated animal feeding operations that house and feed/maintain more
than 500 au at one site or that contract with a corporation that owns more than 3000 au in
the state are industrial facilities and are not agricultural operations for all purposes
under law. Further, these facilities shall not receive special incentives and tax benefits
intended for bona fide independent and family farms. This includes, but is not limited to:
agricultural vehicle tags, fuel tax exemptions, agricultural commodity subsidies,
exemptions regarding protections and wages for workers, and such operations shall not be
deemed eligible for federal farm conservation programs or funding.
[Note: This section would serve to place these facilities under the full range of federal
and state environmental laws - air, water, hazardous waste, OSHA, industrial tax rate,
county planning and zoning. Industrial designation should also pre-empt any state
"right to farm" laws from being applied to these facilities.]
SECTION 3. Moratorium
ALTERNATIVE I:
There is hereby established a moratorium that shall remain in place until:
c- omprehensive testing is completed of the air, ground and surface water & soil
impacts of existing facilities to establish baselines; such facilities' existing permits,
if any, shall be modified in accordance with the results of such testing; and
- comprehensive regulations and a permitting system are in place implementing this
statute (but within no longer than 18 months from enactment of this statute).
ALTERNATIVE II:
Permits are required for all operations after the last day of the 18-month [moratorium]
period beginning on the date of the enactment of this statute, it shall be unlawful to
operate a concentrated animal feeding operation except in compliance with an individual
permit issued under this section to the person responsible for the day-to-day operations
of the operation.
[NOTE: Be sure that all pending permit applications and facility expansions greater than
5% au increase are covered by the moratorium.]
SECTION 4. Required Elements of Animal Waste Management Plan
The required elements of an AWMP for a concentrated animal feeding operation shall include
at least:
- the names, addresses, and telephone number of the operator and of the operation and of
all owners of animals confined at the operation;
- the location, including latitude and longitude, and number of acres of the operation;
- a map indicating the general layout of the operation, including the location of each
building or other structure, the location of all portions of the containment system, the
location and flow of any surface water, the location of water supply wells, and the
direction and degree of all grades within the property lines of the operation;
- a certification by the operator that the operator will be responsible for and will
ensure compliance with the animal waste management plan and the requirements of this Act
and a certification by each owner of 1 or more animals confined at the operation
acknowledging the potential joint liability of the animal owner as provided under Section
14 if the operator violates the terms of the permit or the requirements of this Act with
respect to a discharge from the operation;
- an estimate of the annual animal production and the annual quantity of each type of
animal waste produced by the operation;
- the crop or vegetative cover schedule for any agricultural lands owned or leased by
the operator;
- information necessary to determine the land area required for the application of
animal waste from the operation as determined in accordance with the requirements of this
Act, including Section 9, and any crop or vegetative cover schedule specified in the plan;
- a schedule for periodic testing of soil nutrient levels;
- a schedule for periodic testing of animal waste nutrient levels;
- information necessary to determine the land area available to the operator for
application of animal waste, including copies of deeds of title and written agreements for
use of lands not owned by the operator for application of animal waste;
- if methods of disposal for animal waste other than land application by or on behalf of
the operator will be used, a description of those methods and the annual quantity of
animal waste to be disposed of by each of these methods;
- a description of the methods, structures, or practices that the operator will use to
prevent soil loss, surface water pollution and ground water pollution while minimizing
odors and pests caused by animal waste during collection, storage, and application;
- a description of methods, procedures, and practices that the operator will use for --
- operation, monitoring, maintenance, and inspection of animal waste storage operations;
and
- handling, transportation, application, and treatment of animal waste, including
storage volume, schedules for emptying storage operations, and application schedules,
rates, and locations;
- a description of contingency measures that the operator will use to minimize
environmental pollution resulting from any unexpected waste leak or discharge;
- a description of practices and procedures that the operator will use for maintaining
records detailing compliance with the animal waste management plan and this Act; and
- any additional requirements on a county-by-county basis, imposed by state or local law
(including a regulation).
SECTION 5. Permitting
- Any concentrated animal feeding operation as defined shall be required to obtain
individual permits:
(i) to construct and
(ii) to operate.
No person shall construct or operate an animal waste management system for a concentrated
animal feeding operation without first obtaining these permits.
- AWMP Required for Construction Permit: No construction or expansion of a facility shall
begin until an animal waste management plan described in Section 3 has been approved by
the Department.
- Operating Permit: The operating permit should be a joint air/water permit to prevent
cross-media impacts.
Alternate Language: The operating permits issued under the state's air and water
protection laws and regulations should be prepared jointly by the entities or agencies
designated by the State to issue such permits.
- General Permits shall not be available for concentrated animal feeding operations
meeting the criteria defining a concentrated animal feeding operation.
- Renewal: Permits for concentrated animal feeding operations covered under this chapter
must be renewed every five years. However, subsequent to the issuance of a permit, if the
concentrated animal feeding operation is not in operation or production for two
consecutive years, the permit is not valid and new permit must be obtained.
- Fees:
(i)
Alternative I
Appropriate fees for permit applications and renewals shall be determined by the
department.
Alternative II
An annual operating fee, based on a sliding scale according to the au size of the
operation, may be assessed to cover program costs such as regular inspections, monitoring,
etc.
(ii) Fees shall be adequate to cover the costs of permit reviews, technical assistance,
monitoring, inspections, reasonable administrative costs, and any other program costs.
[Note: The taxpayers should not have to subsidize enviro neutral livestock production.]
- Best Management Practices: The Department shall adopt through rulemaking procedures
Best Management Practices for Concentrated animal feeding operations. These BMPs shall
guide all decisions pertaining to permitting standards.
(i) BMPs shall be adopted to govern land application of manure as specified in Section 9.
(ii) BMPs shall offer encouragement for the use of constructed wetlands for secondary
treatment of wastewater where feasible.
(iii) BMPs shall include be adopted to govern disposal of dead animals to protect the
public health, welfare and the environment, and dead animals shall prohibit the use of
dead animals for feedstock of any type.
- Permit Revocation: Permits shall be revoked under the following conditions:
(i) when the actions of the permittee have resulted in significant harm to the natural
resources of the State, to groundwater or surface water quantity or quality, or to public
health or the environment; or
(ii) when the actions of the permittee have been determined to be willful or intentional
violations of applicable laws, regulations or permit conditions; or
(iii) when the actions of the permittee constitute a pattern of chronic and habitual
violations.
- Permit Suspension: Permits may be suspended under the following conditions:
(i) until compliance is achieved with conditions of permit:
(ii) actions of the permittee constitute violations which if uncorrected will lead to
significant impacts on the environment.
[Note: Suspension may result in the downsizing of an operation for a period of time.]
- Permit Re-openers: A permit may be re-opened and amended when new information about the
environmental impacts of certain operating conditions becomes available.
- Public Participation: The issuance of a permit must adhere to the public participation
specifications found in Section 12.
SECTION 6. Bad Actors
The Director of the Department is authorized to refuse to grant any permit required under
this article to any person:
Who, within the five years preceding the date of the application for the permit, has
been convicted of, plead guilty to, or paid a civil penalty as the result of the violation
of any federal environmental law or any environmental law of this state or of any other
state or the violation of any federal or state permit requirement; or Who was the holder of any permit required by any federal environmental law or by any
environmental law of this state or of any other state which has been revoked within the
five years preceding such application.
SECTION 7. Siting
A concentrated animal feeding operation may not be located within certain sensitive
systems, including but not limited to: federally-designated wetlands, designated flood
plains, and state- or locally-designated areas of "Special Sensitivity" to
environmental impacts due to topography, soil type (i.e. sand, karst, etc.), water
quality, natural habitat significance, or public health and welfare protection. No concentrated animal feeding operation shall cause a permanent reduction of an
aquifer. Concentrated animal feeding operations are prohibited in areas where water rights
are over-appropriated, or where the operation's water use would interfere with
current/established water uses.
SECTION 8. Land Application Limits for Animal Waste
- Land application shall be prohibited within close distance of surface water, subsurface
drainage inlets, water supply wells, drainage ditches, canals and occupied buildings, with
such distances to be specified in Best Management Practices on a site-specific basis.
- Aerial application of animal waste is prohibited.
- Animal waste shall not be applied on ice, snow or frozen soil.
- Animal waste shall not be applied immediately before or during a rain event.
- For sloped land, a conservation plan should be required and in any case animal waste
shall not be applied to slopes of greater than 14 degrees for pasture and hay, and not
more than 10 degrees on row crops, provided that proper contouring and other erosion or
runoff management practices are in place.
- A concentrated animal feeding operation must show that it has sufficient acreage to
spread the animal waste it produces without negative impact, using the nutrient or heavy
metal that is the most limiting factor.
- Animal waste shall not be stockpiled near surface water bodies.
- Land application records are public records.
SECTION 9. Air Emissions and Odor Control Setback
Requirements
- Concentrated animal feeding operations shall be treated as stationary air sources as
defined by the federal Clean Act as amended, and by the National Ambient Air Quality
Standards, and CAFO's shall be required to apply for a stationary air source permits.
All current concentrated animal feeding operations shall make application for air
pollution permits within eighteen months of the effective date of this act, and shall be
in compliance with the NAAQS at that time. - The Department shall promulgate rules for air contaminant emissions for all compounds
released to the ambient air by all components of a concentrated animal feeding operation
(confinement buildings, lagoons, waste handling systems, land application systems, and
other appurtenances). The standards established shall be devised to contain a margin of
error sufficient to protect the public health and welfare.
-
[Note: Setbacks will not solve the odor problem. What will solve the odor problem is
covered lagoons, filters on the animal house exhaust fans and immediate incorporation of
the waste into the soil.]
Setbacks should be as big as you can get, and should establish setback distances from: the
facility property line, the lagoons, the animal housing and the waste application sites.
Setback should also increase as au capacity of the facility increases -- a suggestion
would be an increase of 1/4 mile for every 500 au.
- 1/4 mile from any occupied residence not owned or leased by the owner or operator
- and additional quarter mile for every additional 500 au to a maximum of 2.5 mi.
- no facility of more than 2000 au shall be located within 3 miles of an incorporated area
that exists prior to the development of the facility.
- If an operator has adopted odor controls including covered lagoons, filters on housing
exhaust fans and incorporation of waste into the soil and/or other proven odor control
technologies, setback distances can be reduced to 1000 ft increments.
SECTION 10. Water Quality
Anaerobic Lagoons. Within five years, anaerobic lagoons shall not be permitted. - Public Drinking Water Supply. Immediately upon enactment of this section, no new
concentrated animal feeding operations shall be located within one mile of any surface
water public drinking water supply.
Immediately upon enactment of this section, all new lagoons must have impermeable
liners. Immediately upon enactment of this section, all new lagoons must have a safety berm
around every lagoon. All existing lagoons must construct these berms within two years.
Safety berms must be of sufficient size to contain the entire contents of the lagoon. - Immediately upon enactment of this section, all new waste transport piping must be
constructed with automatic shut-off valves, and all existing waste transport piping must
have these shut-off valves installed within two years.
Shut-off valves must be placed to insure that pipe ruptures do not result in significant
waste spills. Valves must both shut-off the pump and isolate the ruptured pipe section.
If leakage is discovered from waste lagoons or waste transport pipes, it must be
repaired at the owner or operators expense within 60 days or funds shall be acquired from
the financial assurance instrument for such repairs.
SECTION 11. Public Participation
- All orders of rulemaking referenced in this Act shall be adopted only pursuant to state
laws
governing administrative rules and regulations, with full public review and comment and
public
hearings upon draft rules.
Upon submission of an application for a construction permit and waste management plan
or
for renewal of same, there shall be a public notice in a county newspaper of general
circulation,
and by personal notice to all landowners within a three mile radius of the concentrated
animal feeding operation. The public notice shall include at a minimum the location and
animal capacity
of the facility, general construction design and waste management features and a
topographical
map of the land application sites. The complete permit application and waste management
plan
shall be available for public viewing at the public library in the county and at the
office of the
county clerk; this availability shall be stated in the public notice. The applicant shall
pay for all
costs associated with the public notice provisions. - A reasonable period shall be provided for public comment on the waste management plan
and the construction permit application - such period shall be no less than 30 days. These
comments shall be shared with the applicant, and the applicant may be given the
opportunity to revise the design and waste management plans as a result of the public
comments. The Department shall issue a written report on all significant public comment
and shall indicate how the public comments effected decisions to approve, reject, or
modify the permit application.
The Department shall hold a public hearing upon the written requests of 20 impacted
citizens, and shall follow the same procedures as in c above. All costs associated with this public
hearing
shall be borne by the applicant. - Any citizen who submitted comments, or any affected landowner, is entitled to bring
suit
against the operator, applicant, or agency for damages impacting on property values,
quality of
life, or failure to comply with the terms of the permit.
SECTION 12. Inspections & Monitoring
- Regular inspections shall be conducted during construction to ensure that design
specifications and any permits conditions are being met.
The department shall conduct quarterly inspections of all concentrated animal feeding
operations covered under this title. If no deficiencies or act of non-compliance are noted
in four consecutive quarterly inspections, the inspections for that facility shall be on
an annual basis. Any deficiencies or non-compliance noted in an annual inspection shall
return the facility to a quarterly schedule. - The annual inspection must include, but are not limited to, an on-site visit, review of
the implementation of the waste management plan, review of results of monitoring analysis,
annual pollutant loading rates, cumulative pollutant loading rates, and review of all
records required.
All concentrated animal feeding operations covered under this title are required to
install at least one up-gradient and two down-gradient monitoring wells at a depth
necessary to monitor any seepage from a lagoon. Each such well must be analyzed at least
annually. - The Department may conduct additional routine and random visits to sample the
monitoring wells.
With respect to land application sites for animal waste, all concentrated animal
feeding operations covered under this title are required to conduct surface water quality
monitoring where any water exiting the property contributes to a water of the state.
Effluent limitations shall be established for each exit point in compliance with NPDES
requirements. No direct or indirect nutrient loading shall be allowed to violate state
water quality standards. The department shall establish site-specific water quality
monitoring protocols. - The owner or operator must keep records according to regulations promulgated by the
department, and such records shall be open to the public.
SECTION 13. Integrator Liability
- Integrators and contractors are jointly and severally liable for compliance with
environmental regulations and for all damages that result from lack of compliance. These
responsibilities cannot be transferred by contract.
- No contract shall transfer ownership or responsibility for proper disposal of any dead
animals from the Integrators to the contractor.
SECTION 14. Penalties for Violations
- The department shall have the authority to establish a schedule of administrative
penalties based upon the nature and severity of the violation.
- Integrators/operators are liable for the costs of cleanup.
SECTION 15. Closure and Financial Assurance Instruments.
- The Department shall establish by rule the conditions and standards for proper closure
of a concentrated animal feeding operation upon cessation of operations. These shall
address at a minimum lagoon draining and filling, removal of waste handling facilities and
equipment, and other conditions to assure public health and safety.
- Financial assurance instruments (irrevocable letter of credit, cash surety bonds or
cash bonds) shall be posted in an amount sufficient to ensure proper closure. The exact
amount shall be site-
specific and shall be determined by a study conducted by a professional engineer or
consultant
licensed by the state; said engineer shall have no contracts or financial interests, past
or current,
with the facility.
- Upon proper closure, as determined by an inspection by the Department, the financial
assurance instrument shall be returned to the posting entity.
- If upon inspection by the Department, it is determined that conditions exist that do
not comply
with the closure rules, funds shall be acquired from the financial assurance instrument to
achieve
such compliance. Any unspent portion of such financial assurance instrument shall be
returned to
the posting entity.
SECTION 16. Operator Training
Alternative I
All operators and employees of a concentrated animal feeding operation involved in the
operation of the waste handling system are required to undergo training and certification
to the equivalency of the state municipal wastewater treatment plant, with an additional
emphasis on animal waste management systems.
Alternative II
[An appropriate State Institution of Higher Learning] shall create a training and
certification program for owners or operators of concentrated animal feeding operations
that shall include, but is not limited to, understanding relevant regulations, issues,
standards, principles, and practices regarding siting and management of a concentrated
animal feeding operation and land application of animal waste; testing for toxic metals,
organic materials, and other elements; use of antibiotics; implementation of emergency
procedures; and spill prevention protocols including testing and inspection of
dikes/berms.
SECTION 17. County and Local Government Ordinances and
Regulations
- Counties and local governments may adopt ordinances, rules, and regulations more
stringent
than this Act and its implementing regulations.
- Counties may adopt county planning and zoning regulations governing concentrated animal
feeding operations as industrial facilities, provided that the zoning regulations may not
have the effect of excluding concentrated animal feeding operations from entire zoning
jurisdictions.
- A county may, consistent with state law, provide for a public referendum on any
decision to
locate a concentrated animal feeding operation within the county.
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