Pork operations are a target. Nuisance suits are the ammunition, and while the focus may shift from one operation to another or from one part of the country to another, it never really disappears. While the largest operations draw the quickest fire, any operation dedicated to pork production is an open target.
At this year's University of Nebraska George Young Swine Conference, David Domina, an Omaha, Neb., attorney who specializes in agricultural nuisance law, outlined seven ways to avoid nuisance complaints related to pork production units. While many of them relate to new or expanding operations, you can apply this advice to any unit.
Step 1: Become a good neighbor.
Pay more attention to effective public relations. Anger or jealousy drives most nuisance complaints. The people who file lawsuits feel neglected, ignored or unheard. It is a reality that today neighbors must be coddled or pampered.
Make an effort to purchase local products and services, and be visible in your community. Visit with your neighbors regularly. You also may want to host a regular party at your production facility and invite the neighbors.
Remember that perception is everything. An attitude that is perceived to be arrogant is sure to breed complaints.
Always treat your neighbors as you would want to be treated. " If your neighbor was planning a major expansion that would impact your home, you would want to discuss it in advance," says Domina.
omina also suggests keeping egos in check. Don't brag about your acquisitions. " No one likes the person with the biggest house or the best car," he says. Further, nobody likes a " sermonizer."
Step 2: Pay attention to facility locations.
This is related to Step 1. Hearing neighbors out before there is a problem is the best approach.
If you're planning expansion, position the unit out of sight. That way it will more easily be " out of mind" to those who might otherwise be offended. Selecting an inconspicuous site and planting trees as a screen are often a big help. Consider the prevailing winds. Keep a file documenting site selection considerations.
The new or expanded operation should not be a " monument." It should be modest while performing in a functional way.
Step 3: Tout community involvement.
Do everything possible to get stories in area newspapers about contributions your production company or facility is making in the community.
Make an effort to get new or expanded facilities celebrated in the community. Domina cites an example of one such successful expansion where the state governor came to cut the ribbon at the dedication ceremony. The company, he says, also provides tours for local politicians, receives regular positive stories in the local newspaper and has set up a high-school scholarship program because of its proactive community efforts.
In this case, even though the production facility is a " significant odor generator," the community feels lucky to have it, he says.
Step 4: Discuss precautions you're taking.
Post and distribute positive pork production information from universities and other sources, plus provide relevant Web site addresses where people can get accurate information. Producing a brochure about your operation and its contributions also might be advantageous.
Ensure that you always use the latest technology, and get written reports that tell your story and show that you are doing a good job. Make these reports available to the public. Be able to explain any technologies that you use.
Find ways to seek awards and other recognition for your efforts from natural resource districts, industry, and local and state governments. Inform the public of any awards you receive.
Step 5: Don't be penny-wise and pound-foolish.
Consult with a knowledgeable lawyer in nuisance litigation to gather ideas about your operation and production plans before a project begins. Site inspection by a capable lawyer may be worth more than one by an environmental specialist. Nuisance suits often are more about persuasion than technical science.
Step 6: Check insurance coverage.
Does your liability policy cover nuisance claims? Does it contain a " pollution exclusion?" Have the lawyer examine the policies.
Step 7: Stay abreast of new developments.
Domina says you need to remain informed so that you are aware of persistent claims made by persons. This will clue you into who might raise a problem and which issues are the hot buttons.
In terms of staying abreast, he also suggests watching industry technologies that are in the works. This could involve dietary revelations that might reduce livestock odors, manure management techniques and the like.
What Constitutes a Nuisance?
A nuisance " can be anything that interferes with use or enjoyment of another's property, space or life," says David Domina, Omaha, Neb., attorney.
He adds that a proposed nuisance can impact any of following: including visual, smell, hearing, taste or a combination of these. At the same, time, Domina says, not everything that adversely impacts people or their senses is legally considered a nuisance.
" To determine whether something constitutes a nuisance, its advantages need to be weighed against its disadvantages," he says.
Domina says there is a growing trend of nuisance suits directed at agriculture, in particular livestock production operations. Part of that, he says, is due to the consolidation of the livestock industries and the growing size of production and processing facilities.
It Could Happen to You
The idea of being sued is almost unthinkable, but it is possible. This is especially true as regulations become stricter and opposition to livestock production increases.
" You have a lower risk of being sued if you're a good neighbor, and you have a better chance at trial," says attorney Richard Cornfeld, Thompson Coburn LLP, St. Louis, Mo. If you are unfortunate enough to be sued, having the right documentation outlining your environmental management program will be a big plus.
In some instances, a criminal investigation may be taking place without your knowledge. Here are a few warning signs of a potential lawsuit:- Employees may be interviewed at home.
- Reports of interviews involving former employees.
- You receive unusual requests from regulatory agencies.
" If any of these occur, you should contact an attorney as soon as possible," says Cornfeld. " Of course, the best defense is always to make every effort to prevent actions that could lead to charges."