Technically Speaking

Environmental Regulatory Update Requesting a DEQ Inspection – LB 677

By Duane Gangwish

Nebraska Cattlemen’s recent legislative success in passing LB 677 has generated an extraordinary amount of dialog and a number  of questions. That is a good thing.

“So, do I need to ask for this inspections thing?” This is a very simple question that has a rather complex answer.

In 1998, the Legislature passed LB 1209, which enacted the Livestock Waste Management Act. The Act required all livestock operations, except calving operations holding cattle for fewer than 90 days, to file a Request for Inspection with Nebraska Department of Environmental Quality (NDEQ) prior to Jan. 1, 2000.

During stakeholder negotiations on LB 1209, Nebraska Cattlemen and others reached a compromise that offered producers a two-year grace period to request an inspection. Prior to Jan. 1, 1999, there was no inspection fee and between Jan. 1, 1999 and Dec. 31, 1999, the inspection fee was determined by Class (size).

First, here’s a bit of history. Beginning in Jan. 2000, for those operation owners who should have but didn’t request an inspection, the statute states, “The [DEQ] Director shall access a late fee of between $50 and $500 per month with each month being a separate violation.”

The following year, legislative action exempted operations that today we call “Small” (fewer than 300 cattle) from the requirement to request an inspection.

In the CAFO rule published by EPA in 2003, a new term was coined and inserted into federal regulation – Animal Feeding Operation (AFO). Because of the delegated authority under which DEQ enforces the Clean Water Act and the requirement that states, “be no less stringent,” Nebraska was obligated to adopt the term Animal Feeding Operation into statutes. In 2004, LB 916 changed the wording from Livestock Operation to Animal Feeding Operation and drew in calving operations that were previously excluded.

This year at NC’s request, Senator Dubas (Fullerton) introduced LB 677 to give calving operations additional time to evaluate their circumstances and, if appropriate, request an inspection without being assessed the late fee. This additional time does not apply to any operation that is not, or was not, legitimately a calving operation. As much as we tried, we were unsuccessful in garnering the necessary support to give feeders of any size any additional time.

It is important to go through a couple of steps to see if you make it past the first cull/keep exercise. If you are not an AFO, you do not have to request an inspection, regardless of how many animals you may have.

“Animal feeding operation” means a location where beef cattle, dairy cattle, horses, swine, sheep, poultry or other livestock have been, are or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period

AND

crops, vegetation, forage growth or post-harvest residues are not sustained in the normal growing season over any portion of the location.

If you have not requested an inspection by DEQ and you are a calving operation and you meet the definition of an AFO and you have 300 head or more, you are required to file a Form A (Request for Inspection) and pay the appropriate inspection fee.

However, you could be an AFO with fewer than 300 head and still have to request an inspection if your animals have direct contact with surface water or you have a manmade conveyance through which runoff can reach waters of the state.

If you have not requested an inspection by DEQ and you are a feedlot and you have a capacity of 300 head or more, you are required to file a Form A (Request for Inspection) and pay the appropriate inspection fee AND pay the late fee appropriate for your size operation.

NC will be hosting several regional meetings to help answer questions about this very important issue. You may always contact me at the NC office (402) 475-2333 to discuss what may be your unique situation.  Y Duane Gangwish is NC’s vice president of environmental affairs.