Enacted in 1995 the Swine Farm Siting Act, Senate Bill 1180 (SB 1180), mandated that any new swine farm or lagoon should be sited at least 1,500 feet from any occupied residence, at least 2,500 feet from any school, hospital, or church, and at least 100 feet from any property boundary. The Act also provided for a minimum setback for lagoons and sprayfields from residential properties and certain surface waters of 50 feet and a siting exemption from the distance requirements if written permission was given by neighboring property owners.
Attorney General's Office Advisory Opinion 242 (1996) discussed the following concerns arising from the Swine Farm Siting Act:
In addressing the first concern the Opinion stated that "sited" should be understood to apply to swine farm operations that were sited on or after October 1, 1995. Second, the Opinion stated that swine operations that were sited before the aforementioned date and that must expand the size of lagoons or sprayfields to fulfill state water quality requirements may do so even if they violate the 50-foot setbacks for lagoons and sprayfields.
Enacted in 1996 Senate Bill 1217 (SB 1217) amended SB 1180 to allow property owners affected by swine operations to bring civil suits against those swine farmers that violated the siting requirements. It also changed the siting requirement for the setback from property boundaries from 100 feet to 500 feet and it required any person intending to construct a swine farm, subject to animal waste management system permitting requirements, to provide written notice to adjoining and neighboring property owners. SB 1217 also provided exemptions for swine farm construction and enlargement when:
Other new requirements for swine farm operations established by SB 1217 included a general permit requirement for the construction and operation of animal waste management systems; animal waste management plans as part of the application for animal waste management systems; at least one inspection and at least one operations review of animal waste management systems every year; and training and certification of operators of animal waste management systems. SB 1217 required that state and local government employees report certain environmental violations to DENR, if those violations are found by the employees while legally on the swine farm premises. An Agricultural Cost Share Program was also established to provide funding to assist with conservation practices to control soil erosion and nutrient runoff as well as to assist with the closure of lagoons, odor control best management practices, and animal waste management system best management practices.
Attorney General's Office Advisory Opinion 305 (1997) addressed the issue of whether a county Soil and Water Conservation Commission (SWCC) may promise funding from future cost-share grants to reimburse farmers so that they may complete the retrofitting of swine farm lagoons presently. The Opinion stated that there is nothing in the N.C. Constitution that would prohibit a county SWCC from giving the grants subsequent to the actual retrofitting of the lagoons. The Opinion also stated, however, that neither current county SWCC's nor current district boards may bind future boards to such commitments and they may not enter into contracts that would obligate a future SWCC or future board to provide cost-share funding if there are at that time no appropriations to pay for such practices. Finally, the opinion stated that if a county SWCC allots future funds for current practices for a soil and water conservation district, it must also address other districts and individuals that are in similar situations in the same fashion. In summary, a SWCC may promise such funding to a farmer for retrofitting a swine lagoon now as long as there is an understanding between the two that the Commission is not obligated to pay for the practice if appropriations are not received in the future.
House Bill 515 (HB 515), also known as the Clean Water Responsibility and Environmentally Sound Policy Act, established a moratorium from March 1, 1997 through March 1, 1999 on the construction or expansion of swine farms and swine farm lagoons and animal waste management systems. A few of the exemptions included in the moratorium were construction to repair a component of an existing swine farm or lagoon; construction or expansion if a person was issued a permit prior to the effective date of HB 515; or any of the three exemptions previously outlined in SB 1217. HB 515 also delegated authority to counties to adopt zoning regulations governing swine farms having a design capacity of 600,000 pounds steady state live weight, as long as these regulations did not exclude such operations from the counties' entire jurisdiction. HB 515 required the Environmental Management Commission (EMC) to adopt temporary rules, no later than March 1, 1999, to regulate the emission of odors from animal operations. HB 515 also amended the Swine Farm Siting Act by adding the requirement that new swine houses or lagoons be set back at least 500 feet from any well that supplies water to a public water supply system or from any other well that supplies water for human consumption. An exception to these well setbacks was provided for wells that were located on land owned by the owner of the swine farm. The setback for the application of wastes from any occupied properties' boundary or certain surface waters was changed from 50 feet to 75 feet. HB 515 also prohibited the construction of any component of an animal waste management system on land within a 100-year flood plain. On the enforcement side, HB 515 was changed to read that a civil action may be brought against the "owner or operator" of a swine farm. Previously, in SB 1217, the law read "swine farmer." The EMC was authorized to require individual permits for animal waste management systems where needed to "protect water quality, public health, or the environment." The EMC was also required to develop and implement a Violation Points System applicable to swine farms. Under this system points are assigned to swine farms for violations with the number of points assigned based on the degree of harm to the environment. When a certain number of points have been received by a swine operation within a specific period of time, which may not be less than 5 years, the EMC must then revoke the animal waste management system permit for that operation.
Two Advisory Opinions from the Attorney General's Office have been issued pertaining to HB 515: 328 and 329. Opinion 328 (1997) addresses whether a permit issued on the morning of the same day that the moratorium went into effect with the Governor's signing of HB 515 was valid. The permits were issued on the morning of August 27, 1997; the Governor signed HB 515 into law at 1:45 p.m. August 27, 1997. The Advisory Opinion states that these permits fall under the moratorium exemption of having been previously issued prior to the moratorium since the law in question is not effective until the Governor has signed it. Opinion 329 (1997) addresses whether a person who applied for and received construction and expansion permits for an new or existing animal waste management system, prior to the amendment of the Swine Farm Siting Act by HB 515, was required to comply with the new setbacks of the Act as it was amended. The Advisory Opinion states that the person commencing construction or expansion of a new or existing covered animal waste management system must comply with the new setbacks even if the permits for such activity were issued based on the old setbacks. The Opinion states further, however, that if an individual incurred substantial expenditures prior to construction and expansion before the change in the law, they may invoke a common law vested right to continue construction and expansion according to the old setbacks if they could meet the burden of proving four elements of such a right. These four elements are outlined in the Opinion.
Enacted in 1998 House Bill 1480 (HB 1480) amended HB 515, to extend the moratorium an additional six months from March 1, 1999 to September 1, 1999. Additional exemptions to the moratorium were added for the construction and expansion of animal waste management systems that do not employ anaerobic lagoons. HB 1480 also required swine growers, those who held permits for animal waste management systems and who operated swine farms, to register their integrators with DENR. Swine integrators are those that supply the hogs and other materials for growing hogs and with whom the growers have contracts for growing and selling. The grower is required to notify DENR if the relationship between the grower and the integrator is terminated. DENR is required to notify integrators of any violations of laws and rules governing the animal waste management systems of any grower registered with that integrator.
Enacted in 1999 House Bill 1160 (HB 1160), also known as the Clean Water Act of 1999, amended the moratorium on swine farm and lagoon construction and expansion to extend it from September 1, 1999 to July 1, 2001. The pilot program for inspection of animal waste management systems, created by Senate Bill 352 (SB 352) of the 1997 session was amended by HB 1160. The pilot program authorized staff from the Division of Soil and Water Conservation (DWSC) to conduct inspections of all animal waste management systems, within the counties designated by SB 352, with guidance from DENR. Such inspections were to be made to determine if animal waste management systems were in violation of their permits, water quality standards and if the system was in compliance with its animal waste management plan. The HB 1160 amendment extended the implementation period of the pilot program from October 31, 1998 to July 1, 2001 and added Brunswick County to the two other counties to be inspected in the original pilot program: Columbus County and Jones County. Both DENR and the DSWC are required to submit a series of reports to the Environmental Review Commission and the Fiscal Research Division describing whether the program has increased the effectiveness of annual inspections of animal waste management systems or responses to complaints and reported problems. HB 1160 also required the Environmental Management Commission to inventory all inactive animal waste lagoons (those that have not had waste discharged into them for a period of one year or more) and rank these lagoons based on their threat to the public health, environment and the state's natural resources. This inventory must be submitted to the Environmental Review Commission by March 1, 2000.
Finally, HB 1160 established a reporting requirement for animal waste management system owners and operators. This reporting requirement states that in the event of a discharge of 1,000 gallons or more of animal waste, to the surface waters of the state, the owner or operator of the system from which the waste was discharged must within 48 hours of determining the discharge issue a press release. The press release must be issued to all news and electronic media in the county where the discharge occurred and describe the details of the discharge. For discharges of animal waste of 15,000 gallons or more, the owner or operator of the system must publish a discharge notice in a newspaper having general circulation in the county where the discharge occurred and in those newspapers of counties downstream of the discharge that may be significantly affected by it. The Secretary of DENR will determine which counties may be affected and will approve the notices and the newspapers in which the notices are to be published. The notice must be published within 10 days after the Secretary has determined what counties are significantly affected and after the content of the notice and the newspapers in which the notice is to be published have been approved. Both reporting requirements for animal waste discharges are effective October 1, 1999.
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 E-mail: Ted_Feitshans@ncsu.edu |
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