Proposed not Final

Proposed not Final

REGULATION _________________

A REGULATION ESTABLISHING HEALTH REGULATIONS FOR CONCENTRATED ANIMAL FEEDING OPERATIONS; PROVIDING STANDARDS FOR THE PERMITTING OF CONCENTRATED ANIMAL FEEDING OPERATIONS; PROVIDING DEFINITIONS; PROVIDING AN EFFECTIVE DATE; AND PROVIDING FOR SEVERABILITY.

WHEREAS, § 192.300, RSMo, states that a County Commission and a County Health Center Board may make and promulgate Regulations that will enhance the public health and prevent the entrance of infectious, contagious, communicable or dangerous diseases into such county; and

WHEREAS, § 192.300, RSMo, states that a County Commission and a County Health Center Board may establish reasonable fees to pay for any costs incurred in carrying out such Regulations and that any such fees generated shall be deposited in the county treasury and shall be used to support the public health activities for which they were generated; and

WHEREAS, §192.300 RSMo, states that any person, firm, corporation or association which violates any such Regulation adopted, promulgated and published by a County Commission or County Health Center Board is guilty of a misdemeanor and shall be prosecuted, tried and fined as otherwise provided by law; and

WHEREAS, the County Commission or County Health Board has full power and authority to initiate the prosecution of any action under §192.300, RSMo; and

WHEREAS, H.B. No. 1207, 1288, 1408 & 1409 of the Missouri 88^th General Assembly, § 640.710.5, RSMo, recognizes that local controls may be used to regulate concentrated animal feeding operations; and

WHEREAS, health standards and criteria for concentrated animal feeding operations consistent with state law have been prepared based upon state law and professional studies presented to and considered by the Cooper County Health Center Board of Trustees; and

WHEREAS, the adoption and enforcement of said standards is hereby found to be necessary in order to enhance the public health and prevent the entrance of infectious, contagious, communicable or dangerous diseases into Cooper County;

NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE COOPER COUNTY HEALTH CENTER OF COOPER COUNTY, MISSOURI AS FOLLOWS:

1. DEFINITIONS

Unless the context clearly indicates to the contrary, words used in the present tense include the future tense and words used in the plural include the singular.  For the purposes of this Regulation, the following words, terms and phrases shall have the following meanings unless otherwise indicated:

• ANIMAL UNIT ("AU"):  A unit of measurement to compare various animal types at a concentrated animal feeding operation.  One animal unit equals the following:  1:0 beef feeder or slaughter animal; 0.5 horse; 0.7 dairy cow; 2.5 swine weighing over 55 pounds; 10 swine under 55 pounds; 10 sheep, lambs, and meat and dairy goats; 30 laying hens, pullets, and broilers with a wet handling system; 55 turkeys in grow out phase; 82 laying hens without a wet handling system; 125 chicken broilers and pullets, and turkey poults in brood phase, all without a wet handling system.  The total animal units at each operating location shall be determined by adding the animal units for each animal type.

• ANIMAL UNIT EQUIVALENT:  An equivalent animal type and weight that has a similar amount of manure produced as one of the animal unit categories set forth in the definition of "animal unit" herein.  This also applies to other animal types which are not specifically listed.

• ANIMAL WASTE:  Any animal excrement, animal carcass, feed waste, animal water waste, or any other waste associated with animals.

• ANIMAL WASTE WATER:  Any animal excreta, any liquid which comes into contact with any manure, litter, bedding or other raw material or intermediate or final material or product used in or resulting from the production of animals or products directly or indirectly used in the operation of a CAFO, or any spillage or overflow from animal watering systems, or any liquid used in washing, cleaning or flushing pens, barns, or manure pits, or any liquid used in washing or spraying to clean animals, or any liquid used for dust control on the premises of a CAFO.

• APPLICATION:  The surface application or injection of Animal Waste or Animal Waste Water into the land for use as a soil supplement.

• CONCENTRATED ANIMAL FEEDING OPERATION ("CAFO") all land and/or a lot, facility, parcel, or operating location in which animals have been, are or will be stabled or confined and fed or maintained for a total of forty-five (45) days or more in any twelve (12) month period and a ground cover of vegetation is not sustained over at least fifty percent (50%) of the animal confinement area.  A "concentrated animal feeding operation" shall not include any land area, structure, lot, yard, or corral or other area which does not meet the numerical threshold for animals as set forth in the classification system of § 2 of this Regulation.  For purposes of this definition, the Concentrated Animal Feeding Operation means and refers collectively to an animal production facility which includes at least one Feedlot, Livestock Lagoon, Manure Storage Structure, and a Land Application Area.  For the purposes of this definition, "animal confinement area" includes the buildings or structures, including Feedlots, in which animals are confined.  A  CAFO does not include a feeding operation that has a capacity of less than three-hundred (300) AU.

• CONSTRUCTION PERMIT:  A construction permit/letter of approval required of a CAFO by the Missouri Department of Natural Resources pursuant to the Missouri Clean Water Law.

• COUNTY HEALTH PERMIT:  Written authorization issued by the Cooper County Health Center Board of Trustees to construct, modify or operate a CAFO.

• DRY HANDLING WASTE:  Manure (urine or feces), litter, bedding, or feed waste from animal feeding operations.

• FEEDLOT Any land area, structure, lot, yard, or corral or other area, whether enclosed with a roof or unenclosed, wherein livestock are confined in close quarters for the purpose of fattening, feeding, growing, raising, or birthing such livestock for final shipment to market or slaughter.  Without limiting the generality of the foregoing definition, a lot or structure which contains three hundred (300) AU’s per acre for the foregoing purposes shall be considered a Feedlot.  A "Feedlot" does not include unenclosed pasture areas which are used for the raising of crops or other vegetation upon which livestock are allowed to graze or feed.

• LAND Any plot, parcel, lot or other area of land owned or leased by the CAFO to qualify for the capacity of "1 acre per 4 AU" formula for wet handling or "1 acre per 8 AU" formula for dry handling.

• LAND APPLICATION AREA. Any and all real property where the Application occurs of Animal Waste and Animal Waste Water generated by a CAFO, regardless of whether the Land Application Area is under the control of the Owner or any third party.

• LEASE A written contract for the exclusive use of real property, which contract specifically grants unto the lessee the right to apply animal waste and animal waste water to the leased premises.

• LIVESTOCK Cattle, sheep, swine, poultry, and other animals or fowl, which are being produced primarily for use as food or food products for human consumption.
• LIVESTOCK LAGOON: An excavated, diked, or walled area designed for the biological stabilization, treatment and/or storage of liquid wastes generated by a Feedlot.

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• MANURE STORAGE STRUCTURE. Any structure primarily used to collect Animal Waste, Animal Waste Water, feces, manure, urine, or any other waste generated within the production area of a CAFO.

• NUTRIENT APPLICATION LEVELS: The levels of nutrients applied to a Land Application Area in accordance with a CAFO’s DNR-approved Nutrient Management Plan..

• OCCUPIED DWELLING: Any residence, or any church, school or business which has been in use at any time during the 12 month period immediately prior to the date upon which a permit is issued by the Department of Natural Resources for the construction of a CAFO.  In regards to "setback" distance cemeteries, conservation areas and public use areas will be treated the same as occupied dwellings.

• OPERATING PERMIT: An operating permit and/or letter of approval required of a CAFO by the Missouri Department of Natural Resources pursuant to the Missouri Clean Water Law.

• OWNER: Anyone who owns, either individually and/or with any other persons, any of the following interests in the real property upon which a CAFO is situated:
  • Fee simple title,
  • A leasehold interest,
  • Any interest in an entity which holds fee simple title; or
  • Any interest in any entity which has a leasehold interest.

1.21     PERSON:  Includes natural persons and also includes any corporation, partnership, limited liability company, association, and any other business or charitable entity, including a natural person who has a supervisory authority over the operation of a CAFO, whether or not such person is an owner of the CAFO, and any natural person who applies animal waste or animal waste water originating from the CAFO.

1.22     PLANT FILTER AREA:  Land used or reserved for the application of liquid wastes from a Livestock Lagoon.

1.23     POPULATED AREA:  An area having at least 10 occupied dwellings not on CAFO property, as measured in a straight line from the occupied dwelling to the nearest CAFO confinement building, confinement lot, or other confinement area, or waste handling facility.

• SETBACK: The distance for the CAFO facility to the nearest occupied dwelling not on CAFO property, as measured in a straight line from the occupied dwelling to the nearest CAFO confinement building, confinement lot, other confinement area, or water handling facility.

• SLOPE: The vertical drop divided by the horizontal distance of a land area multiplied by one-hundred, and expressed as a percentage.

• WET HANDLING WASTEWATER: Water containing waste or contaminated by waste contact, including process-generated and contaminated rainfall runoff.

• CLASSIFICATION OF CONCENTRATED ANIMAL FEEDING OPERATIONS

• Class IA CAFO is one that has a capacity of 7,000 or more AUs.
• Class IB CAFO is one that has a capacity of 3,000 to 6,999 AUs.
• Class IC CAFO is one that has a capacity of 1,000 to 2,999 AUs.
• Class II CAFO is one that has a capacity of 300 to 999 AUs.

• PERMIT REQUIREMENT FOR ALL CAFOS

• No CAFO shall be constructed, operated, used, or established within Cooper County unless a County Health Permit has been issued by the Cooper County Health Center Board of Trustees.  To apply for a County Health Permit the proposed CAFO shall submit to the Cooper County Health Center Board of Trustees all of the application materials submitted to the Department of Natural Resources for an operating permit and an application fee as established by the Cooper County Health Center Board of Trustees pursuant to Section 11 of this Regulation.  If the CAFO is issued an Operating Permit and if the proposed CAFO meets the requirements of this Regulation, then the Board of Trustees of Cooper County Health Center shall also issue a County Health Permit.  If the proposed CAFO is not subject to regulation by the Missouri Department of Natural Resources ("DNR"), then to apply for a County Health Permit the proposed CAFO shall submit a plan to the Board of Trustees of Cooper County Health Center showing the location of the proposed facility, the number of proposed animal units, the proposed method and location of animal waste disposal and the name and address of the owner of the proposed CAFO as well as the name and address of the owner of the land on which the CAFO will be located, if different from the owner of the CAFO.  In such case, if the Board of Trustees of the Cooper County Health Center determines that the proposed CAFO complies in every respect with the terms of this Regulation, then the Board of Trustees of Cooper County Health Center shall issue a County Health Permit.

• An application for a County Health Permit shall be submitted to the Board of Trustees of Cooper County Health Center for approval. 

• At least one public hearing shall be held by the Board of Trustees of Cooper County Health Center before approving any County Health Permit.  Such public hearing may be continued from time to time and additional hearings may be held.  The receipt and consideration of evidence at said hearings shall comply with the requirements of § 536.070, RSMo.

• The Cooper County Health Center Board of Trustees may impose reasonable and appropriate conditions in each County Health Permit.  Any such conditions should enhance the public health and prevent the entrance of infectious, contagious, communicable or dangerous diseases into the County.  These permit conditions may include, but are not necessarily limited to, requirements for air monitoring of emissions from the CAFO; monitoring and sampling of groundwater, surface water, and effluent; reporting of any spills, leaks, accidents, and seepage; providing a list of all medications and supplements administered to the animals; allow entry of Cooper County Health Center personnel onto the CAFO property for inspection and monitoring purposes; reporting any incident involving sick animals; and reporting of any spills, leaks, accidents, or seepage related to any land application of wastes originating from the CAFO.

• Once a CAFO has received a County Health Permit, the CAFO must apply for a renewal of said permit each calendar year.  All applications for renewal permits shall be submitted, along with the applicable renewal fee, at least thirty (30) days prior to the anniversary date of the issuance of the initial County Health Permit.  If the Board of Trustees of Cooper County Health Center determines that the CAFO has complied in all respects with the permit previously issued, then the Board of Trustees of Cooper County Health Center may issue the renewal permit.  Otherwise, the Board of Trustees of Cooper County Health Center shall not issue a renewal permit and the CAFO immediately shall cease operation.

• It shall be a violation of this Regulation and unlawful for any person to operate a CAFO without first obtaining a County Health Permit from the Board of Trustees of Cooper County Health Center.

• It shall be a violation of this Regulation and unlawful for any person to operate a CAFO with a number of Animal Units in excess of the number specified in the permit issued by the Board of Trustees of Cooper County Health Center.

• It shall be a violation of this Regulation and unlawful for any person to apply animal waste or animal waste water in a manner inconsistent with the requirements of this Regulation.

• Any CAFO holding a County Heath Permit is strictly liable for any Animal Waste or Animal Waste Water generated at its CAFO facility that is land applied or disposed of in any manner that is contrary to any requirement in the County Health Permit or any Federal, State, or Local permit, statute, regulation, or ordinance.

1. RULES APPLICABLE TO ALL CAFOS

            Prior to issuance of a County Health Permit, the Board of Trustees of Cooper County Health Center shall make findings of fact and conclusions of law as to the following:

• The proposed CAFO shall be in compliance with the provisions of Sections 4 through 7 of this Regulation, as applicable.

• All Livestock Feedlots, Manure Storage Structures, and Livestock Lagoons shall be designed and constructed in such a manner as to avoid the degradation of the quality of surface or subsurface waters, water courses or other bodies of water.

• All Livestock Feedlots, Manure Storage Structures, and Livestock Lagoons shall be designed and constructed in such a manner as to avoid the degradation of air quality.  In no event shall the concentration of gases at the boundary of the land resulting from the operation of a Livestock Lagoon, Manure Storage Structure, or Livestock Feedlot exceed the following levels:

• The applicant shall demonstrate that the soils on the premises, including an soil-plant filter area, are suitable for and compatible with the proposed CAFO or Livestock Feedlot operations with respect to the location of Livestock Lagoons, Manure Storage Structures, and the application of liquid, slurry or solid animal waste onto or into the soil on the premises.  Further, no animal waste from a Livestock Lagoon or Manure Storage Structure shall be applied when soils are water saturated, frozen, or covered with snow, or when other soil conditions would result in waste runoff.

• The applicant shall demonstrate that it shall at all times be operated in compliance with any required local, state or federal permits, licenses or other approvals, and in compliance with all applicable state and local laws and regulations.

• The CAFO shall own or lease one acre of land for each 4 AU of capacity for wet handling systems or must own or lease one acre for each 8 AU of capacity for a dry waste handling system as specified in the County Health Permit.  The land must be in a contiguous tract for all wet handling systems.  The Nutrient Application Levels for all Land Application of Animal Waste and Animal Waste Water originating from the CAFO shall comply with the DNR-approved Nutrient Management Plan.

• Animal Waste and Animal Waste Water shall not be applied to land with a slope greater than 10%.

• Animal Waste Water injected or knifed into the soil shall not be applied within one-thousand (1,000) feet of an occupied dwelling which existed prior to the date the CAFO completes construction and become fully operational.  Dry animal waste shall not be applied within five-hundred (500) feet of an occupied dwelling which existed prior to the date the applicant applies for a CAFO permit.  This Regulation shall not apply to occupied dwellings owned by the CAFO.  The owner of an occupied dwelling may apply for a variance from this Regulation as part of the application for a County Health Permit.

• Animal Waste and Animal Waste Water shall not be applied within one-thousand (1,000) feet of any area containing karst, karstic conditions, sink hole, well, spring, or other water supply or one-hundred (100) feet from any stream (including intermittent streams) or strip pits. 

• No County Health Permit shall be issued for any facility containing any Manure Storage Structure unless such structure is located at least three-thousand (3,000) feet from an existing residence.

• SETBACK REQUIREMENTS

• No additional CAFO shall be located within one mile of any Class IA CAFO and no Class I CAFO will be located within one mile of any other CAFO.  No additional Class IB, IC, or II CAFO shall be located within three-fourths (3/4) mile of any Class IB CAFO.  No other Class IC or II CAFO shall be located within one-half (1/2) mile of any Class IB CAFO.  No other Class II CAFO shall be located within one-fourth (1/4) mile of any Class IV CAFO.  This distance shall be measured from the nearest point of one CAFO’s confinement or waste containment system to the nearest point of another CAFO’s confinement or waste containment system.

• No Class II CAFO shall be located within 2,000 feet of an occupied dwelling.  No Class IC CAFO shall be located within one-half mile of an occupied dwelling.  No Class IB CAFO shall be located within three-quarters mile of an occupied dwelling.  No Class IA CAFO shall be located within one mile of an occupied dwelling.  These setback requirements shall increase by one-fourth of a mile for each 500 AU (or fractional portion thereof) of capacity in excess of 2,000 AU.  This rule shall not apply to occupied dwellings owned by the CAFO or to dwellings not in existence at the time of the submission of the application to the County Health Center Board.

No Class IA CAFO shall be located within two miles of a populated area.  This setback shall increase one-fourth (1/4) mile for each 500 AU (or fractional portion thereof) of authorized capacity in excess of 2,000 AU.

• FINANCIAL SECURITY

• No health permit shall be issued unless adequate security has been furnished to ensure proper cleanup and disposal as required by sections 6.2 and 6.3 hereto.

• A surety bond shall be furnished to the Cooper County Health Center for the operation of any manure storage system.  A manure storage system may include a Manure Storage Structure or one or more lagoons at any single CAFO.  The surety shall be approved by the Board of Trustees of Cooper County Health Center and found to be of reputable character and financially sound with respect to the obligation incurred.  The bond shall be furnished before construction and during the operating period.  The bond shall remain with the Cooper County Health Center Board until the operator has complied with all Federal, State and Local laws in operation of the facility and until the prompt clean up and proper disposal of any waste improperly handled or disposed of at the facility and restoration of the premises upon which the facility is operated.  The Board of Trustees of Cooper County Health Center shall give approval before release of the bond.

• The surety bond schedule is as follows:

6.3.1    Class IC          –           $100,000.00

6.3.2    Class IB          –           $500,000,00

6.3.3    Class IA          –           $750,000.00 and $25,000.00 for each additional 500

AU over the 2,000 AU

• VARIANCE TO SETBACK RULES

                  Where, due to an extraordinary or exceptional situation or condition of a specific piece of property, the strict application of this Regulation would result in peculiar and exceptional difficulties to, or an exceptional and demonstrable undue hardship upon, the owner of the property as an unreasonable deprivation of use as distinguished from the mere grant of a privilege, the Board of Trustees of Cooper County Health Center may authorize, as part of the application for a County Health Permit, a variance from the strict application so as to relieve said demonstrable difficulties or hardships, provided the relief can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the regulations, standards and criteria established in this Regulation.

• APPLICATION OF REGULATION

                  Any CAFO that holds a valid DNR operating permit and is fully operational at the time of the enactment of this Regulation is exempt from the terms and conditions in this Regulation; provided, however that before a CAFO in existence at the time of the enactment of this Regulation may expand or change its operation in terms of a change of classification or amount or manner in which animal waste or animal waste water is applied or disposed of, the CAFO shall be in compliance with this Regulation in every respect and shall obtain a new County Health Permit.

• DISPOSAL OF DEAD ANIMALS AND AFTER BIRTHING MATERIAL

                  The proper disposal of dead animals and after birthing material shall be completed within twenty-four (24) hours from the time of occurrence.

• ADMINISTRATIVE FEES

• No application for approval of a County Health Permit shall be accepted until the applicant has paid all processing fees as set forth below. Fees paid shall be non-refundable except as provided in Section 10.4 below.

• The fee amount shall not exceed the amount needed to recover the cost of inspection, investigation and review of the proposed application, which fee amounts are based upon the anticipated costs of review, inspection and investigation, and which fee amounts have taken into consideration the need for special investigative services including geologic inspections, hydrologic inspections, groundwater monitoring, soils evaluation, and other unique costs of a scientific or technical nature associated with the processing of the application. For purposes of this Regulation, the administrative fee amounts shall be as follows:

• The Cooper County Health Center Board will establish an escrow fund, for each application for a County Health Permit, for the purposes of reimbursing the Cooper County Health Center Board of Trustees for services rendered in connection with administration of this Regulation. Said escrow account shall include the proceeds of project review fees established pursuant to this Section.  The funds contained in said escrow account shall be used solely to reimburse the Board of Trustees of Cooper County Health Center for actual costs associated with the administration of this Regulation, for actual services rendered for investigation, administration and processing of a County Health Permit including costs associated with the retaining and compensation of experts on scientific and technical issues associated with the application, and costs associated with public hearings.  The Cooper County Health Center Board shall disburse payments based upon invoices submitted to the CAFO for services conducted by the Cooper County Health Center.

• The applicant for a County Health Permit may apply to the Cooper County Health Center Board of Trustees for a credit against the fee previously paid in the event that a portion of the costs of review and processing is duplicative, pursuant to the standards of applicable case law or statutes then in effect. After the approval, conditional approval or denial of a County Health Permit, the Cooper County Health Center Board shall refund to the applicant any unexpended or unencumbered balance of the escrow account established pursuant to this Section for said application.

• VIOLATION OF REGULATION

                  Any person violating this Regulation shall be subject to punishment by imprisonment or fine as provided by law.  Each day a person operates a CAFO in violation of this Regulation, and each time a person applies animal waste or animal waste water in a manner inconsistent with the requirements of this Regulation, shall be considered a separate offense.

• SEVERABILITY

                  The chapters, sections, paragraphs, sentences, clauses, and phrases of this Regulation are severable, and if any phrase, clause, sentence, paragraph, or section of this Regulation shall be declared unconstitutional or otherwise invalid by the valid judgment or decree of any Court of competent jurisdictions, such unconstitutionality or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs, or sections of this Regulation since the same would have been enacted by the Board of Trustees of the Cooper County Health Center without the incorporation in this Regulation of any such unconstitutional or invalid phrase, clause, sentence, paragraph, or section.

• REPEAL OF REGULATIONS NOT TO AFFECT LIABILITIES, ETC.

                  Whenever any part of this Regulation shall be repealed or modified, either expressly or by implication, by a subsequent Regulation, that part of the Regulation thus repealed or modified shall continue in force until the subsequent Regulation repealing or modifying the Regulation shall go into effect unless therein otherwise expressly provided; but no suit, prosecution, proceeding, right, fine or penalty instituted, created, given, secured or accrued under this Regulation previous to its repeal shall not be affected, released, or discharged but may be prosecuted, enjoined, and recovered as fully as if this Regulation or provisions had continued in force, unless it shall be therein otherwise expressly provided.

• EFFECTIVE DATE

                  This Regulation shall be in full force and effect from and after its passage by the Board of Trustees of Cooper County Health Center, except as provided above.

PASSED AND APPROVED ON THIS ____ DAY OF JULY 2018.

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 Proposed not Final

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