Joint Subcommittee Studying Industrial Swine Production

August 27, 1997, Danville

Regulatory Conditions

The subcommittee is charged with examining the private sector and governmental actions taken in Virginia to prevent environmental damage from swine production facilities. The primary environmental risk associated with animal agriculture is water quality degradation. Animal waste contains the nutrients nitrogen and phosphorus, excess levels of which in water are harmful to fish and other organisms and can make the water unfit for human consumption. Waste can enter surface water bodies if it spills out of a defective or overflowing impoundment structure or is applied to land in such a way that precipitation will wash it into a water body. It can also enter groundwater if a storage structure leaks.

Virginia has two statutes designed to prevent such environmental damage: the Virginia pollution abatement general permit for confined animal feeding operations and the Agricultural Stewardship Act. A third governmental action aimed at preventing agriculturally caused environmental damage is Virginia's Agricultural Best Management Practices Cost-Share Program. A fourth law, the Right to Farm Act, concerns the extent to which any action that affects swine production facilities can be taken by localities and private citizens.

General Permit

In 1994, the General Assembly enacted legislation requiring the State Water Control Board to adopt a general permit for confined animal feeding operations. A general permit is applicable to a class or category of potential dischargers. That is, upon fulfillment of the requirements of the regulation governing the general permit, an operator is automatically covered by the permit. The more common type of environmental permit is the individual permit, which is issued to and designed specifically for a particular operation. Prior to 1994, confined animal feeding operations in Virginia were required to obtain individual pollution abatement permits. Pollution abatement permits are not discharge permits; they require that waste material be managed in such as way as to prevent discharge into state waters.

Under the general permit legislation, a "confined animal feeding operation" is an unvegetated lot or facility where animals are kept for at least 45 days in any 12-month period. An operation with 300 or more animal units (in the case of swine, 750 animals weighing more than 55 pounds each) that utilizes a liquid manure collection system must comply with the requirements of the general permit. To be covered by the general permit, an operator must file a registration statement with the Department of Environmental Quality (DEQ) and attach a letter of approval of the operation's nutrient management plan from the Department of Conservation and Recreation (DCR), a notification from the locality in which the operation is located that the operation complies with zoning requirements, and a certification that the operator meets all requirements for the general permit.

The operation's liquid manure collection and storage system must be designed to prevent any discharge to state waters, except in the event of a 25-year, 24-hour or larger storm, and have the capacity to store waste when the ground is frozen or saturated and when the waste cannot be applied to land. One foot of freeboard must be maintained in the waste storage structure. Buffer zones must be maintained between areas where waste may be applied and wells, surface water, rock outcroppings, sinkholes and occupied dwellings. Monitoring must include annual waste monitoring and soil monitoring every three years. Records concerning waste application must be kept for two years after each application. New earthen waste storage facilities must have a synthetic liner at least 20 mils thick or a compacted soil liner at least one foot thick with a maximum permeability rating of 0.0014 inches per hour. The operator must comply with the nutrient management plan.

Permittees are required to report any noncompliance to DEQ and submit a new registration statement 30 days prior to any operational modification that will result in the management of new or increased pollutants. DEQ has a right of entry to inspect an operation and the records it is required to keep. Inspections must be performed at least every five years, but the agency's inspection strategy recommends annual inspections. In the fiscal year that ended June 30, 14 of the 46 operations covered by the general permit were inspected.

The general permit currently covers 25 swine operations, with a total of 255,000 hogs being raised. Eight of the 25 operations are listed as being owned by Smithfield Carroll's, and these operations account for 200,000 hogs. The general permit is effective for 10 years from November 16, 1994. Nutrient management plans, however, are normally effective for only three years, and therefore they are updated over the course of the permit. They address issues such as identification of the farm's soils, crop yield estimates, nutrient application rates for each crop, timing of manure and fertilizer applications, waste storage capacity requirements, population limits for livestock confined on the farm, crop harvest and utilization requirements, and soil conservation techniques.

Agricultural Stewardship Act

The Agricultural Stewardship Act, enacted in 1996, provides another mechanism for addressing water quality problems created by agricultural operations. It applies to all agricultural operations except those confined animal feeding operations that are subject to the general permit. The act is complaint-driven: any person who believes that water pollution is being created by an agricultural operation may submit a complaint to the commissioner of agriculture. If an investigation confirms that the operation is creating or will create pollution, then the owner or operator of the farm must within 60 days formulate a plan containing measures that will prevent or end the pollution. He has six months to begin implementing the plan and 18 months to completely implement the plan.

If the owner or operator fails to implement the plan, the commissioner must issue a corrective order requiring him to implement specified measures to correct the pollution. If he fails to obey a corrective order, the commissioner can obtain a court order requiring him to implement the measures contained in the order. The penalty for violating a corrective order or court order is $5,000 per violation per day.

Best Management Practices

The Agricultural Best Management Practices Cost-Share Program is administered by soil and water conservation districts. It provides funds to help farmers install conservation practices that protect water quality. In order to be eligible for cost-share funds, farmers must agree to implement a conservation plan, and the plan must be approved by the local district board. Practices, once installed, must be inspected before payments are made.

Right to Farm

As enacted in 1981, the Right to Farm Act prevented agricultural operations from becoming public or private nuisances "by any changed conditions in or about the locality thereof" after the operation existed for one year. This exception to nuisance law did not apply if the nuisance resulted from improper operation or there was a significant change in the operation. Under the common law, a nuisance is the use of one's property in a way that interferes with another's use of his property (private nuisance) or in a way that endangers the public's health, safety or welfare (public nuisance). In 1994 the act's nuisance provisions were strengthened by replacing language regarding changed conditions in the locality and replaced the requirements that the operation be in operation for more than a year with no change in the operation itself with a requirement of compliance with best management practices and existing laws and regulations.

The 1994 amendments also added a restriction on local government power. As amended, the act prohibits counties from requiring special exceptions or special use permits "for any production agriculture or silviculture activity in an area that is zoned as an agricultural district or classification" and provides that "no county, city or town shall enact zoning ordinances which would unreasonably restrict or regulate farm structures or farming and forestry practices in an agricultural district or classification unless such restrictions bear a relationship to the health, safety and general welfare of its citizens." The act specifically allows counties, however, to "adopt setback requirements, minimum area requirements, and other requirements that apply to land on which agriculture and silviculture activity is occurring within the locality that is zoned as an agricultural district or classification."

Economic Conditions

Between 1980 and 1996, the number of farms with hogs in the United States dropped from 666,550 to 157,450. In Virginia, the number dropped from 23,500 to 2,200. During the same period, the number of sows in the nation dropped from 9.1 million to 7 million, while the number in Virginia dropped from 113,000 to 4,400. By comparison, the number of farms with hogs in North Carolina dropped from 41,000 to 6,000, while the number of sows rose from 340,000 to 1 million.

The costs of production change based on the number of sows on the farm and whether the farm falls in the category of "low tech" or "high tech." For a "low-tech" farm with 150 sows, the costs of production exceed the market price of the hogs. For a "high-tech" farm with 150 sows, the market price barely exceeds the costs of production. Profitability increases with the number of sows.

A 1993 study predicted the economic impact of a 5,000-sow increase in swine production in Halifax County. The study concluded that such an increase would provide 73 on-farm, support and indirect jobs (each of which would pay an average of $16,677 per year), an increase in retail sales of $1 million, an increase in the property tax base of $13 million and an increase in the personal property tax base of $1.5 million.

Public Hearing

The subcommittee also held a public hearing in the evening of August 27 in Chatham. The subcommittee, along with several members of the General Assembly from Southside Virginia, heard almost four hours of testimony on the question of whether expansion of the hog industry in Virginia is desirable and whether any changes in the law are necessary to ensure that any such expansion, if it occurs, proceeds in an appropriate manner. Critics and supporters of the industry appeared in roughly equal numbers. Critics of the industry called for stricter regulation of the industry and amending the Right to Farm Act to allow localities to require special use permits for certain types of farms. Supporters of the industry told the subcommittee that the industry is sufficiently regulated and that Virginia agriculture needs the protection provided by the Right to Farm Act.

The subcommittee's second meeting will be held October 29th in Richmond.

The Honorable Mitchell Van Yahres, Chairman
Legislative Services contact: Nicole R. Beyer