HF 2281 (LSB 5945YH (4) 90)

HOUSE FILE 2281

BY  STAED, CROKEN, AMOS JR., LEVIN, KURTH, STECKMAN, MADISON, KRESSIG, BROWN-POWERS, GAINES, ABDUL-SAMAD, and JACOBY

A BILL FOR

An Act providing that an animal feeding operation constitutes a per se interference with the comfortable use and enjoyment of life or property of a person residing in proximity to the animal feeding operation.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 657.11, subsection 2, Code 2024, is amended to read as follows:
   2.  a.  An animal feeding operation, as defined in section 459.102, shall not be found to be a public or private nuisance under this chapter or under principles of common law, and the animal feeding operation shall not be found to interfere with another person’s comfortable use and enjoyment of the person’s life or property under any other cause of action brought by a person.
   b.  However, this section shall not apply if the person bringing the cause of action proves that any of the following: 
   (1)  That an injury to the person or damage to the person’s property is proximately caused by either of the following:
   a.  (a)  The failure to comply with a federal statute or regulation or a state statute or rule which applies to the animal feeding operation.
   b.  (b)  Both of the following:
   (1)  (i)  The animal feeding operation unreasonably and for substantial periods of time interferes with the person’s comfortable use and enjoyment of the person’s life or property.
   (2)  (ii)  The animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation.
   (2)  The animal feeding operation constitutes a per se interference with the comfortable use and enjoyment of life or property of the person bringing the cause of action as provided in section 657.12.
    Sec. 2.  Section 657.11A, subsection 5, Code 2024, is amended to read as follows:
   5.  This section shall not apply if the under any of the following circumstances: 
   a.  The person bringing the action proves that the public or private nuisance or interference with another the person’s comfortable use and enjoyment of the person’s life or property under any other cause of action is proximately caused by any of the following:
   a.  (1)  The failure to comply with a federal statute or regulation or a state statute or rule which applies to the animal feeding operation.
   b.  (2)  The failure to use existing prudent generally utilized management practices reasonable for the animal feeding operation.
   b.  The animal feeding operation constitutes a per se interference with the comfortable use and enjoyment of life or property of the person bringing the cause of action as provided in section 657.12.
    Sec. 3.  NEW SECTION.  657.12  Animal agriculture —— promotion of responsible animal feeding operations —— per se interference.
   1.  An animal feeding operation constitutes a per se interference with the comfortable use and enjoyment of life or property of a person residing within one mile of an animal feeding operation as defined in section 459.102, if all of the following apply:
   a.  It is more likely than not that the animal feeding operation is the source of the odor.
   b.  An odor measurement is taken by an official of the department of natural resources who has successfully completed a department-sponsored odor certification course and has demonstrated the ability to distinguish various odor samples and concentrations. The departmental official shall use a properly maintained scentometer, an odor panel, or another instrument or method approved by the department. The odor measurement must comply with ASTM E679-04 standards and shall be taken at a location within fifty feet the person’s residence closest to the animal feeding operation.
   c.  The departmental official measures seven odor concentration units or higher when conducting an odor measurement on five different days during normal conditions in a two-month period from May 1 to September 30.
   d.  The departmental official certifies the results of the odor measurement.
   2.  The department shall not conduct an odor measurement on the same property more than ten times in any twenty-four-month period.
   3.  All distances shall be measured from their closest points.
   4.  The department shall report the finding and results of any odor measurement to the person residing at the residence and the owner or operator of the animal feeding operation. The owner or operator may contest the certification as a contested case proceeding under chapter 17A. The department shall report any certification on its internet site.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   BACKGROUND. This bill provides for a cause of action against an animal feeding operation (AFO) based on odor originating from the operation. An animal feeding operation refers to a place where agricultural animals (e.g., horses, cattle, swine, sheep, goats, turkeys, poultry, and fish) are confined, fed, and maintained for 45 days or more in any 12-month period without supporting vegetation and includes confinement feeding operations (Code chapter 459) and open feedlot operations (Code chapter 459A). The doctrine of nuisance has been developed by the common law but in Iowa is also set forth by general statute (Code chapter 657). Under both sources of law, a cause of action may be brought by a plaintiff based on an allegation that the defendant is interfering with the plaintiff’s comfortable use and enjoyment of life or property. The Code chapter includes two special provisions applicable to that cause of action involving an AFO. Generally, in order to proceed with a cause of action in that case, the plaintiff must prove that that owner or operator of the AFO either violated applicable federal or state law or failed to use existing prudent, generally accepted management practices reasonable for the operation (Code section 657.11). In addition, compensatory damages in such an action are limited to (1) the diminution in the fair market value of a person’s real property; (2) the adverse effect on a person’s past, present, and future health condition based on objective and documented medical evidence; and (3) special damages such as annoyance and the loss of the comfortable use and enjoyment of real property not to exceed one and one-half times the damages awarded for the diminution of the fair market value of the person’s real property and the person’s adverse health condition (Code section 657.11A).
   BILL’S PROVISIONS. The bill carves out an exception from those statutory protections afforded to an AFO when the cause of action is based on odor. The bill provides that in such a case, an AFO constitutes a per se nuisance if the plaintiff proves four elements. First, the plaintiff’s residence must be located within one mile of the AFO. Second, it must be more likely than not that the AFO is the source of odor. Third, an official from the department of natural resources (DNR) must take an odor measurement using standardized equipment and procedures at a specific location near the plaintiff’s residence at a point closest to the AFO. Finally, the DNR official must measure seven concentration units or higher of the odor on five different occasions during normal seasonal conditions during a 2-month period from May 1 until September 30.
   The DNR cannot conduct an odor measurement at the same property more than 10 times in any 24-month period. The DNR must report the finding and results of any odor measurement to the person residing at the residence and the owner or operator of the AFO. The owner or operator may contest the certification as a contested case proceeding under Code chapter 17A.