Chapter ATCP 51

ATCP 51.14 ATCP 51.14 Odor and air emissions.

ATCP 51.14(1) (1) Odor standard. Except as provided in subs. (2) to (4), a livestock facility shall have an odor score of at least 500. The operator shall calculate the odor score according to Appendix A, worksheet 2, or by using the equivalent spreadsheet provided on the department’s website. An application for local approval shall include worksheet 2 or the spreadsheet output.

ATCP 51.14 Note Note: The spreadsheet equivalent of Appendix A, worksheet 2 is available on the department’s website at http://livestocksiting.wi.gov/ .

ATCP 51.14 Note Odor score is based on predicted odor generation (based on size and type of livestock facility), odor practices, and the proximity and density of “affected neighbors.” See Appendix A, worksheet 2.

ATCP 51.14 Note An odor score is a predictive estimate. The standard in sub. (1) applies only for purposes of local livestock facility siting decisions under this chapter. Failure to comply with the standard in sub. (1) does not constitute evidence of a public or private nuisance, negligence, or a taking of property.

ATCP 51.14 Note Odor control practices may also control air pollution emissions. The department will work to coordinate odor and air emissions field research with DNR, the Wisconsin agricultural stewardship initiative (WASI), and the University of Wisconsin. The department will consider research results when it reviews this chapter at least once every 4 years (see s. 93.90 (2) (c), Stats.). As part of its review, the department will consult with an advisory committee that includes representatives of livestock producers, local government and environmental interests. The department will consider amendments to this rule, as appropriate, based on research findings.

ATCP 51.14(2) (2) Exemptions. The odor standard in sub. (1) does not apply to any of the following livestock facilities unless the facility operator voluntarily completes and submits worksheet 2 or the equivalent spreadsheet output with the operator’s application for local approval:

ATCP 51.14(2)(a) (a) A new livestock facility with fewer than 500 animal units.

ATCP 51.14(2)(b) (b) An expanded livestock facility with fewer than 1,000 animal units.

ATCP 51.14(2)(c) (c) A livestock facility in which all livestock structures will be located at least 2,500 ft. from the nearest affected neighbor.

ATCP 51.14 Note Note: “Affected neighbors” (ATCP 51.01 (2)) are residences or “high-use buildings” (ATCP 51.01 (16)) other than those owned by the livestock operator or by persons who agree to be excluded from odor score calculations under sub. (1).

ATCP 51.14(3) (3) Clusters. If all of the livestock structures in a livestock facility are divided among 2 or more clusters, such that no cluster is located closer than 750 feet to any other cluster, an operator may choose to calculate an odor score under sub. (1) for each cluster rather than for the entire livestock facility. Each cluster shall comply with the odor standards in sub. (1).

ATCP 51.14 Note Note: For example, a dairy operator can take advantage of sub. (3) if a proposed dairy facility includes a milking operation (cluster 1) and a heifer facility (cluster 2) located 800 feet from each other.

ATCP 51.14(4) (4) Local discretionary credit.

ATCP 51.14(4)(a) (a) Notwithstanding sub. (1), a political subdivision may in its discretion approve a livestock facility with an odor score of less than 500, provided that the odor score is not less than 470.

ATCP 51.14(4)(b) (b) If a political subdivision exercises its discretionary authority under par. (a), its written decision under s. ATCP 51.34 (3) shall state the reason or reasons for that exercise of discretionary authority.

ATCP 51.14(4)(c) (c) The livestock facility siting review board may not review any of the following under s. 93.90 (5), Stats.:

ATCP 51.14(4)(c)1. 1. A political subdivision’s exercise, or refusal to exercise, discretionary authority under par. (a).

ATCP 51.14(4)(c)2. 2. The adequacy of the political subdivision’s stated reasons under par. (b) for exercising discretionary authority under par. (a).

ATCP 51.14 Note Note: A political subdivision must approve a livestock facility that meets the odor standard under sub. (1), assuming that the facility meets other livestock facility siting standards under this chapter (see ATCP 51.34 (1)).

ATCP 51.14 Note A political subdivision may not approve a livestock facility that fails to meet the odor standard under sub. (1), except that the political subdivision may exercise its discretionary authority under sub. (4) (a) in favor of an applicant if it chooses to do so. For example, a political subdivision may exercise its discretionary authority under sub. (4) (a) based on factors such as community tolerance, the applicant’s near attainment of a standard, innovative odor control practices, local land use plans, or the applicant’s past reputation for good management and community relations.

ATCP 51.14(5) (5) Credits for odor control practices. In the calculation of predicted odor under sub. (1), an operator may claim credit for all of the following:

ATCP 51.14(5)(a) (a) Odor control practices, identified in Appendix A, worksheet 2, which the operator agrees to implement. For each odor control practice, the operator may claim a credit specified in Appendix A, worksheet 2.

ATCP 51.14(5)(b) (b) An odor control practice not identified in Appendix A, worksheet 2 if the department pre-approves a credit for that practice. The operator shall claim the pre-approved credit according to the procedure specified in Appendix A, worksheet 2.

ATCP 51.14(5)(c) (c) An operator seeking department approval under par. (b) shall submit all of the following to the department in writing:

ATCP 51.14(5)(c)1. 1. A clear description of the odor control practice for which the operator seeks an approved credit.

ATCP 51.14(5)(c)2. 2. Scientific evidence to substantiate the efficacy of the odor control practice under relevant conditions.

ATCP 51.14(5)(d) (d) The department may approve a credit for an odor control practice under par. (b) if, in the department’s opinion, there is adequate scientific evidence to show that under relevant conditions the practice will result in odor reduction commensurate with the approved credit. The department shall grant or deny the request within 90 days after the department receives the request.

ATCP 51.14 Note Note: An odor control practice credit under sub. (5) is expressed, in the odor score calculation in Appendix A, worksheet 2, as a multiplier value (the lower the multiplier, the greater the benefit to the livestock operator).

ATCP 51.14(6) (6) Future reference points.

ATCP 51.14(6)(a) (a) Whenever an operator seeks local approval for the expansion of a livestock facility previously approved under this chapter, the operator may calculate an odor score under sub. (1) by reference to the same affected neighbors referenced in the odor score calculation for the prior local approval. The operator is not required to include, in the new odor score calculation, an affected neighbor that was not referenced in the odor score calculation for the prior local approval.

ATCP 51.14(6)(b) (b) Paragraph (a) applies regardless of any change in ownership of the livestock facility since the prior local approval, and regardless of the amount of time that has passed since the prior local approval, provided that the prior local approval has not been lawfully withdrawn for good cause under s. ATCP 51.08 (2) or 51.34 (4) (b).

ATCP 51.14 Note Note: The odor score calculation in Appendix A, worksheet 2 is partly based on the proximity and density of “affected neighbors” (see ATCP 51.01 (2)). An application for local approval documents those “affected neighbor” reference points. Subsection (6) protects an operator against the effects of encroaching development, without regulating that development directly.

ATCP 51.14 Note A local government must keep a complete record of each local approval for at least 7 years, and must file with DATCP a copy of each approval (including the application on which it was based). The local government must also provide the livestock operator with documentation of the local approval, including the maps on which the approval was based (see s. ATCP 51.34 (3) (b)). The approved maps document the “odor score” reference points for purposes of sub. (6).

ATCP 51.14 Note The livestock operator can record the local approval (including mapped “odor score” reference points) with the local register of deeds, and can convey the documentation to subsequent purchasers. In those ways, an operator can document previously-approved “odor score” reference points for purposes of a subsequent expansion.

ATCP 51.14(7) (7) Presumption. For purposes of local approval, a livestock facility is presumed to comply with this section if the application for local approval complies with s. ATCP 51.30.

ATCP 51.14 Note Note: Under s. ATCP 51.30, an application must be complete, credible and internally consistent. The application must include, among other things, a worksheet (or equivalent spreadsheet output) that shows compliance with this section. See Appendix A, worksheet 2. Local approval is conditioned upon compliance in fact (see s. ATCP 51.34 (4)). The presumption in sub. (7) may be rebutted by clear and convincing evidence in the record (see s. ATCP 51.34 and 51.36).

ATCP 51.14 History History: CR 05-014: cr. Register April 2006 No. 604, eff. 5-1-06.

ATCP 51.16 ATCP 51.16 Nutrient management.

ATCP 51.16(1) (1) Nutrient management standard.

ATCP 51.16(1)(a) (a) Except as provided in par. (c):

ATCP 51.16(1)(a)1. 1. Land applications of waste from a livestock facility approved under this chapter shall comply with NRCS nutrient management technical standard 590 (September, 2005), except for sections V.A.2.b(2), V.D, V.E and VI.

ATCP 51.16 Note Note: NRCS nutrient management technical standard 590 (September, 2005) is reprinted in Appendix B. The following sections of the reprinted standard do not apply for purposes of this chapter:

ATCP 51.16 Note V.A.2.b(2), related to additional requirements imposed by local conservation plans.

ATCP 51.16 Note V.D, related to additional criteria to minimize N and particulate air emissions.

ATCP 51.16 Note V.E, related to additional criteria to protect the physical, chemical and biological condition of the soil.

ATCP 51.16 Note VI, related to discretionary considerations.

ATCP 51.16(1)(a)2. 2. A nutrient management checklist, shown in Appendix A, worksheet 3, part C, shall accompany an application for local approval. A qualified nutrient management planner, other than the livestock operator, shall answer each checklist question. The planner shall have reasonable documentation to substantiate each answer, but neither the planner nor the operator is required to submit that documentation with the checklist.

ATCP 51.16 Note Note: A livestock operator is not required to submit a complete nutrient management plan with an application for local approval. Both the operator and the qualified nutrient management planner must sign the nutrient management checklist. See Appendix A, worksheet 3, part C.

ATCP 51.16(1)(b) (b) A political subdivision may ask a nutrient management planner to submit the documentation that the planner relied upon to substantiate the planner’s answer to one or more questions on the nutrient management checklist under par. (a) 2. The political subdivision may deny local approval if the planner’s documentation does not reasonably substantiate the answer.

ATCP 51.16(1)(c) (c) Paragraph (a) does not apply to a livestock facility with fewer than 500 animal units unless the operator’s ratio of acres to animal units, calculated according to Appendix A, worksheet 3, part B, is less than 1.5 for dairy and beef cattle, 1.0 for swine, 2.0 for sheep and goats, 2.5 for chickens and ducks, and 5.5 for turkeys.

ATCP 51.16 Note Note: A waste and nutrient management worksheet (Appendix A, worksheet 3) must accompany every application for local approval. Among other things, the worksheet shows the operator’s ratio of acres to animal units under par. (c).

ATCP 51.16 Note Paragraph (c) is an exemption, not a requirement, for livestock facilities. If a livestock facility qualifies for exemption under par. (c), the operator is not required to submit a nutrient management checklist under par. (a). The ratios stated in par. (c) are based on the phosphorus content of manure from the respective livestock species.

ATCP 51.16(2) (2) Presumption. For purposes of local approval, an operator is presumed to comply with sub. (1) if the application for local approval complies with s. ATCP 51.30.

ATCP 51.16 Note Note: Under s. ATCP 51.30, an application must be complete, credible and internally consistent. The application must include, among other things, a waste and nutrient management worksheet (Appendix A, worksheet 3). The completed worksheet must include all of the following:

ATCP 51.16 Note • The types and amounts of manure and other organic waste that the facility will generate when fully populated.

ATCP 51.16 Note • The types and amounts of waste to be stored, the waste storage facilities and methods to be used, the duration of waste storage, and waste storage capacity.

ATCP 51.16 Note • The final disposition of waste by landspreading or other means.

ATCP 51.16 Note • The acreage currently available for landspreading.

ATCP 51.16 Note • A map showing where waste will be applied to land.

ATCP 51.16 Note • A nutrient management checklist if required under sub. (1).

ATCP 51.16 Note Local approval is conditioned upon compliance in fact (see s. ATCP 51.34 (4)). The presumption in sub. (2) may be rebutted by clear and convincing evidence in the record (see ss. ATCP 51.34 and 51.36).

ATCP 51.16(3) (3) Nutrient management updates. An operator may update nutrient management plans and practices as necessary, consistent with sub. (1) (a) 1.

ATCP 51.16 Note Note: This subsection does not require an operator to file updates with a political subdivision, but neither does it limit local authority to request updates or monitor compliance with sub. (1) (a) 1. See s. ATCP 51.34 (4).

ATCP 51.16(4) (4) Exemption. This section does not apply if all of the following apply:

ATCP 51.16(4)(a) (a) The operator holds a WPDES permit for the same proposed livestock facility, and that permit is based on housing for a number of animal units that is equal to or greater than the number for which the operator seeks local approval.

ATCP 51.16(4)(b) (b) The operator submits a copy of the WPDES permit with the operator’s application for local approval.

ATCP 51.16 History History: CR 05-014: cr. Register April 2006 No. 604, eff. 5-1-06.

ATCP 51.18 ATCP 51.18 Waste storage facilities.

ATCP 51.18(1) (1) Design, construction and maintenance; general. All waste storage facilities for a livestock facility shall be designed, constructed and maintained to minimize the risk of structural failure, and to minimize the potential for waste discharge to surface water or groundwater. A waste storage facility may not lack structural integrity or have significant leakage. An unlined earthen waste storage facility may not be located on a site that is susceptible to groundwater contamination.

ATCP 51.18 Note Note: A “site that is susceptible to groundwater contamination” is defined in s. ATCP 51.01 (39).

ATCP 51.18(2) (2) Existing facilities. For purposes of local approval, an existing waste storage facility is presumed to comply with sub. (1) if a registered professional engineer or certified agricultural engineering practitioner certifies one of the following in the application for local approval:

ATCP 51.18(2)(a) (a) The facility is constructed of concrete or steel or both, was constructed within the last 10 years according to then-existing NRCS standards, and shows no apparent signs of structural failure or significant leakage.

ATCP 51.18(2)(b) (b) The facility was constructed within the last 3 years according to then-existing NRCS standards, and shows no apparent signs of structural failure or significant leakage.

ATCP 51.18(2)(c) (c) The facility was constructed according to NRCS standards that existed at the time of construction, is in good condition and repair, and shows no apparent signs of structural failure or significant leakage.

ATCP 51.18(2)(d) (d) The facility is in good condition and repair, shows no apparent signs of structural failure or significant leakage, and is located on a site at which the soils and separation distances to groundwater comply with NRCS technical guide manure storage facility standard 313, table 1 (November, 2004).

ATCP 51.18(2)(e) (e) The facility is in good condition and repair, shows no apparent signs of structural failure or significant leakage, is located entirely above ground, and is located on a site at which the soils comply with NRCS technical guide manure storage facility standard 313, table 5 (November, 2004).

ATCP 51.18 Note Note: According to s. ATCP 51.30, an application for local approval must include a certification under sub. (2) for each existing waste storage facility. See Appendix A, worksheet 4 (waste storage facilities).

ATCP 51.18(3) (3) New or substantially altered facilities. For purposes of local approval, a new or substantially altered waste storage facility is presumed to comply with sub. (1) if all of the following apply:

ATCP 51.18(3)(a) (a) The application for local approval includes design specifications for the facility.

ATCP 51.18(3)(b) (b) A registered professional engineer or certified agricultural engineering practitioner certifies that the design specifications comply with all of the following:

ATCP 51.18(3)(b)1. 1. NRCS technical guide manure storage facility standard 313 (November, 2004).

ATCP 51.18(3)(b)2. 2. NRCS technical guide manure transfer standard 634 (November, 2004).

ATCP 51.18 Note Note: According to s. ATCP 51.30, an application for local approval must include the design specifications and certification to which sub. (3) refers. See Appendix A, worksheet 4 (waste storage facilities).

ATCP 51.18(4) (4) Closed facilities. If a waste storage facility is closed as part of the construction or expansion of a livestock facility, the closure shall comply with NRCS technical guide closure of waste impoundments standard 360 (December, 2002). A closure is presumed to comply with this subsection, for purposes of local approval, if the application for local approval includes the closure plan and certification required under s. ATCP 51.30.

ATCP 51.18 Note Note: According to s. ATCP 51.30, an application for local approval must identify any waste storage facilities to be closed. The application must include a closure plan for each identified facility. A registered professional engineer or certified agricultural engineering practitioner must certify that the closure plan complies with NRCS technical guide closure of waste impoundments standard 360 (December 2002). See Appendix A, worksheet 4 (waste storage facilities).

ATCP 51.18 Note Under s. NR 151.05 (3) and (4), an operator must normally close a manure storage facility if the facility has not been used for 24 months, or poses an imminent threat to public health, aquatic life or groundwater.

ATCP 51.18 Note If a waste storage facility is abandoned or not properly closed, a political subdivision may seek redress under s. 66.0627 or 254.59, Stats., as appropriate.

ATCP 51.18(5) (5) Storage capacity.