Environmental

Senate and House bills on algae control differ

On March 10, the Ohio House of Representatives passed H.B. 61, a proposal to address Ohio’s toxic algae issues.   Last month, the Ohio Senate approved a bill on the same issue, but with several points of difference.  The two must now reconcile these differences and agree upon a plan for reducing the occurrence of toxic algae in Lake Erie, which they have stated they will soon accomplish.  The House already began its hearings on the Senate bill on March 11.

Here's a summary of the similarities and variations between the two proposals.

Prohibitions of surface applications.  Both bills prohibit the surface application of manure and fertilizer, defined as nitrogen or phosphorous, in the western Lake Erie basin on frozen ground, saturated soil, and when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a 12-hour period.  The Senate version also prohibits the application of granular fertilizer with regard to weather conditions, and the House bill also prohibits reckless violation of EPA rules regarding the surface application of sewage sludge.

Exemptions from prohibitions.  Both bills exempt a person from the above prohibitions for manure and fertilizer applications that are injected into the ground or applied on a growing crop.   Each also contains an exemption for fertilizer that is incorporated into the soil within a certain time period; the House allows a 24-hour time period while the Senate allows 48 hours for incorporation of the fertilizer.

Exclusion from enforcement.    The House bill allows a potential violator of the manure prohibitions to request assistance from ODNR, SWCD or other qualified persons on the development of technically feasible and economically reasonable measures that would cease or prevent violations; requires ODNR to assist with the request and set a schedule for implementing the measures; and prevents ODNR from enforcing violations if a person has made such a request, is receiving assistance or is implementing the measures.  The Senate bill does not include these or similar exclusions from enforcement.

Enforcement of violations.  If a person violates the prohibition against manure applications, the Senate authorizes ODNR to assess a civil penalty as determined by rulemaking and after allowing opportunity for a hearing.  The House takes a "corrective action" approach, allowing ODNR to notify a violator and propose corrective actions within a specified time period, then to inspect for continued violations after the specified time period and determine whether violations are still occurring and a civil penalty should be assessed, with an opportunity for a hearing.

Review and sunset.   The House bill requires a joint legislative committee review of the results of the prohibitions against fertilizer and manure applications and a report to the Governor of their findings and recommendations on whether to repeal or revise the prohibitions.  The Senate version requires a joint review and report to the Governor after four years, but states that the prohibitions on fertilizer and manure applications will sunset after five years unless the committees jointly recommend continuing the prohibitions.

Agency coordinator.  The Senate bill requires the EPA director to serve as the coordinator of harmful algae management and response and to develop plans, protocols and coordinated efforts to address harmful algae.  The House proposal does not contain this or a similar provision.

Studies.   In the Senate bill, the EPA is authorized to conduct studies of nutrient loading from point and nonpoint sources in the Lake Erie and Ohio River basins.  The House bill does not contain this or a similar provision.

Healthy Lake Erie Fund.  The House would not change the existing Healthy Lake Erie Fund, but the Senate proposes eliminating most current uses of the fund and revising it to allow the fund to be used for financial assistance with winter cover crops, edge of field testing, tributary monitoring and animal waste management and conservation measures in the western Lake Erie basin and for reduction of nutrient runoff as determined by ODNR’s Director.

Phosphorous monitoring.   Both bills require certain publicly owned treatment works (POTWs) to conduct monthly monitoring of total and dissolved phosphorous by the end of 2016 and other POTWs to complete a study of their ability to reduce phosphorous, but the House bill would also require the Ohio EPA to modify NPDES permits to include these requirements. 

Dredging.  Both bills prohibit the deposit of dredged materials beginning July 1, 2020; the Senate applies the prohibition to Ohio’s entire portion of Lake Erie and its direct tributaries, while the House would limit the prohibition to the Maumee River basin.

Lead contamination.  The House does not address lead contamination, but the Senate version prohibits the use in public water systems or water consumption facilities of certain plumbing supplies and materials that are not lead free and prohibits other actions related to lead pipes and fittings. 

Emergency.  The Senate version declares an emergency, allowing the legislation to be effective immediately upon passage, while the House bill does not declare an emergency.

To review H.B. 61, visit this link.  The Senate's bill, S.B. 1, is availble at this link. 

A federal court has dismissed a lawsuit claiming that the Ohio Department of Agriculture (ODA) is improperly issuing National Pollutant Discharge Elimination System (NPDES) permits for concentrated animal feeding operations without authorization by the U.S. EPA.   Two residents of northwest Ohio filed the suit last summer against the ODA, the Ohio EPA and the U.S. EPA.  In a tenuous argument, they alleged that the Ohio EPA illegally delegated its authority over NPDES permits by allowing ODA to issue a manure management plan as a condition for obtaining an NPDES permit from the Ohio EPA, and by allowing ODA to “determine, collect and analyze” data required for an NPDES permit.  The plaintiffs had also requested a preliminary injunction against ODA, which the court denied last December.

The lawsuit aims at the Ohio legislature's action in 2000 that transferred authority from the Ohio EPA to ODA for Ohio's state-based permitting program for concentrated animal feeding facilities.  The state permit program is separate from, and in addition to, the NPDES permit program administered under the federal Clean Water Act by the Ohio EPA.  Following the transfer of the state program to ODA, Ohio requested that the U.S. EPA approve a transfer of the NPDES permit authority for animal feeding operations from Ohio EPA to the ODA.  The U.S. EPA has not yet approved the transfer, and the NPDES program remains with the Ohio EPA.  If approved by the U.S. EPA, both the state and NPDES permit programs would be administered through ODA's Livestock Envrionmental Permitting program.  Until that time, ODA administers the Livestock Environmental Permitting program according to Ohio law, while the Ohio EPA oversees NPDES permits for animal feeding operations that are also subject to the Clean Water Act due to potential discharges into waters of the United States.

The plaintiffs claimed that ODA is improperly administering NPDES permits because of the manure management plans required for both the state and federal permit programs.   An applicant seeking both an Ohio and an NPDES permit can submit the same manure management plan to each agency.  The standards for both programs are the same, because ODA followed the EPA's federal requirements for manure management plans when it developed Ohio's manure management plan standards.   It is possible that a manure management plan approved by ODA could also be approved by the Ohio EPA in the NPDES permit program.  Plaintiffs argued that by allowing a manure management plan that had been approved for ODA's permit program to be used in the application for an NPDES permit, the Ohio EPA was delegating its authority to ODA to review and approve manure management plans for the NPDES program.

Not surprisingly, the U.S. District Court disagreed. "Even though a permit applicant may submit to the Ohio EPA a manure management plan which was developed to satisfy Ohio’s permit to operate requirements, the plan is still reviewed by the Ohio EPA and will only be allowed to be used in the discharge elimination permit application if the plan satisfies federal regulations and the Clean Water Act,"  stated Judge David Katz.

Judge Katz proceeded to grant the agencies' motion to dismiss the case.  "Plaintiffs’ assertion that the Ohio EPA improperly delegated its authority regarding concentrated feeding permits to the Ohio Department of Agriculture is completely devoid of merit. The facts simply do not show that Ohio’s EPA and Department of Agriculture have engaged in any conduct which violates a federal statute or regulation."

Read the decision in Askins v. Ohio Dept. of Agriculture here.

Although long considered a natural fertilizer that can benefit our soils, manure has a history of increased regulation in recent years based on potential impacts to water quality.   The following explains how state and federal law regulates the production, storage and application of animal manure in Ohio.  

Livestock Environmental Permitting Program

The Ohio Department of Agriculture’s Division of Livestock Environmental Permitting (ODA) administers a permit program for Ohio’s largest confined livestock operations, or Concentrated Animal Feeding Facilities (CAFFs).  Ohio Revised Code Chapter 903 and Ohio Administrative Code 901:10 contain the program’s legal provisions.

An owner must obtain a “permit to install” and a “permit to operate” from ODA before operating a CAFF.  The permit requirement applies to a CAFF that houses any of the following, at a minimum:

• 700 mature dairy cows
• 2,500 hogs over 55 pounds
• 10,000 baby pigs under 55 pounds
• 82,000 laying hens
• 125,000 pullets or broilers
• 1,000 head of beef animals of any size
• 500 horses
• 10,000 sheep or lambs
• 55,000 turkeys

Related to manure, obtaining the “permit to install” requires a CAFF owner to submit information on:

• Maps indicating CAFF boundaries, manure storage facility dimensions, location and siting distances and locations of subsurface drains within 100 feet of manure storage.
• Geological study results with information on soil; groundwater sampling and analysis; hydrology; geology and topography of land used for manure storage.
• Listing of the type, amount and nutrient content of manure from the facility.

For the permit to operate, the CAFF must submit a Manure Management Plan that outlines the Best Management Practices the CAFF will implement to minimize water impacts from the storage and use of manure.  The Manure Management Plan must include:

• A nutrient budget.
• Manure and soil characterizations.
• Manure distribution and utilization methods
• Methods for minimizing odor.
• Inspection, maintenance and monitoring practices.
• Land application methods.

Land Application of Manure for Permitted CAFFs

Land application of manure by a permitted CAFF or by a Certified Livestock Manager working with the CAFF must be in accordance with ODA regulations, which include requirements for:

• Soil and manure tests.
• Crop yields and rotations to determine nutrient needs.
• Setbacks from streams, neighbors and wells
• Limitations on amounts of nitrogen, phosphorus and liquid applied.
• Weather predictions.
• Examination of soil condition for cracks, earthworm burrows and plant root pathways to tile or tile blowouts in the field.
• Monitoring of tile outlets during and after application.
• Restrictions against runoff or ponding of manure.
• Recordkeeping requirements.
• Inspection requirements.

If a local farmer uses manure from a permitted CAFF for application on another farm, the CAFF must provide the farmer with the ODA’s application requirements and a current manure test.  The farmer must certify when and how much manure was taken from the CAFF.  The farmer’s land application of manure then falls under the Agricultural Pollution Abatement Program, described below.

National Pollutant Discharge Elimination System (NPDES) Permits

The federal Clean Water Act requires livestock operations defined as “Confined Animal Feeding Operations” (CAFOs) to obtain a federal NPDES permit if they discharge or propose to discharge a pollutant to surface waters, even if the operation has obtained a permit from ODA. The Ohio EPA administers the NPDES permit process, which requires operators to control spills and runoff from their facilities and from the land application of manure.   To obtain a permit, a CAFO must develop and implement a Manure Management Plan that addresses:

• Practices to ensure adequate manure storage capacity and proper maintenance and operation of storage facilities.
• Practices to divert clean storm water away from production areas.
• Practices to ensure that animals and manure in the production area do not come into direct contact with waters of the State.
• A land application plan that includes:

• A nutrient budget.
• Manure and soil characterizations.
• Application methods and timing.
• Agronomic application rates.

CAFO owners must also meet ongoing monitoring, recordkeeping and reporting requirements and are subject to enforcement actions for violations.

Certified Livestock Manager Certification

Ohio law requires Ohio’s largest CAFFs and every manure broker or manure applicator who handles more than 4,500 dry tons or 25 million liquid gallons of manure per year to obtain the Certified Livestock Manager (CLM) certification from ODA.  The applicant must complete core classes on nutrient management standards, manure storage and handling and Ohio manure regulations and must also complete three elective classes on water quality, soil testing, stockpiling, emergency action plans, spill reporting, value of manure nutrients, recordkeeping, biosecurity, liability or applying manure to growing crops. CLMs must complete ten hours of continuing education every three years to maintain their certification.

Ohio Agricultural Pollution Abatement Program

Ohio’s Agricultural Pollution Abatement Program (APAP) applies to agricultural operations that are not subject to the above state and federal permit programs for CAFFs and CAFOs.   As stated in Ohio Revised Code 1511 and Ohio Administrative Code 1501:15-5, APAP provides state standards for management and conservation practices that aim to abate water pollution resulting from animal manure.   The Ohio Department of Natural Resources Division of Soil and Water Resources (ODNR) administers APAP in cooperation with local Soil and Water Conservation Districts (SWCD).

Ohio’s APAP regulations establish Best Management Practices (BMPs) for livestock operators.  The standards encourage operators to:

• Operate and maintain animal manure collection, storage or treatment facilities to prevent seepage, overflow or discharge of animal manure into waters of the state.
• Prevent the discharge of manure-contaminated runoff from animal feedlots and animal manure management facilities.
• Prevent pollution caused by flooding; construct animal feeding operations so that animal manure will not be inundated by a 25 year frequency flood.
• Minimize pollution from land application of manure by adopting manure application practices that consider the characteristics of the animal manure, available land, topography, cropping system, method of application, weather, time of the year, condition of the soil, other nutrients applied and nutrient status of the soil.

Technical expertise and cost-share assistance is available through APAP to help operators install and implement BMPs and develop Operation and Management Plans.   The law provides a complaint-driven process for suspected pollution incidents that can result in an investigation by ODNR or SWCD.   Farms that cause pollution and fail to adopt the recommended BMPs to address pollution abatement must develop and implement modifications to their facilities as approved by ODNR or SWCD, or face enforcement actions.

Watershed in Distress Regulations

The Ohio APAP regulations also contain rules that apply to certain producers of manure within areas designated as “watersheds in distress,” located in Ohio Administrative Code 1501:15-5-19 to 20.   The chief of ODNR’s Division of Soil and Water Resources, with approval of the Ohio Soil and Water Conservation Commission, may designate a watershed to be in distress when aquatic life and health is impaired by nutrients or sediment from agricultural land uses and where there is a threat to public health, drinking water supplies, recreation, or public safety and welfare.  Within the boundaries of a designated watershed in distress, these additional regulations apply to animal facility owners and operators and manure applicators:

• No land application of manure may occur between December 15 and March 1 without prior approval from the agency; before and after these dates, applications of manure on frozen ground or ground covered in more than one inch of snow may occur only if injected into the ground or incorporated within 24 hours of surface application.
• No land application of manure if the local weather forecast shows more than a 50% chance that precipitation would exceed one-half inch of rain in the 24 hours after the proposed application.
• Restrictions on the application of snowpack manure.
• An operation must ensure a minimum of 120 days of manure storage as of December 1 of each year and keep records of manure storage volumes.
• Anyone who produces, applies or receives more than 350 tons or 150,000 gallons of manure per year must have an approved Nutrient Management Plan that addresses the methods, amount, form, placement, cropping system and timing of all nutrient applications, unless the farm is already operating under a permit from ODA’s DLEP or an NPDES permit from OEPA.

For more information on the regulation of animal manure in Ohio, refer to these resources:

ODA Livestock Environmental Permitting and Certified Livestock Manager Programs - www.agri.ohio.gov/divs/DLEP/dlep.aspx

Ohio EPA Confined Animal Feeding Operations - www.epa.ohio.gov/dsw/cafo/index

Ohio DNR Agricultural Pollution Abatement  - www2.ohiodnr.com/soilwater/water-conservation/agricultural-pollution-abatement

Ohio Revised Code - http://codes.ohio.gov/orc

Ohio Administrative Code - http://codes.ohio.gov/oac

Fourteen years after the Ohio Legislature transferred permitting authority for confined animal feeding operations (CAFOs) from the Ohio EPA to the Ohio Department of Agriculture (ODA), a Wood County couple is challenging the transfer in federal court as a violation of the federal Clean Water Act.   Larry and Vickie Askins filed the lawsuit on August 4, 2014 in the U.S. District Court Northern Division against the ODA, Ohio EPA and U.S. EPA.  The lawsuit seeks an injunction to prevent ODA from further issuing National Pollutant Discharge Elimination System (NPDES) permits to CAFOs.  The lawsuit also asks the court to order that only the Ohio EPA can administer the NPDES permit program in Ohio, that the Ohio EPA violated federal law by failing to notify the U.S. EPA of the transfer of CAFO permitting authority to ODA and that the U.S. EPA violated federal law by failing to suspend Ohio’s ability to issue NPDES permits after the transfer of authority.

The Ohio Legislature passed S.B. 141 in 2000, which transferred authority to issue NPDES permits for CAFOs from Ohio EPA to ODA.  The lawsuit alleges that this transfer violated the terms of a 1974 Memorandum of Agreement between the U.S. EPA and Ohio EPA, in which the U.S. EPA, which has original authority over NPDES permits, delegated its authority to the Ohio EPA for purposes of administering the NPDES program in Ohio.  To date, U.S. EPA has delegated full or partial NPDES authority to 45 states. 

According to the Askins lawsuit, Ohio also violated Clean Water Act regulations by not notifying the U.S. EPA of the transfer until 2006.  Since the notification in 2006, the U.S. EPA still has not granted ODA the authority to administer an NPDES permit program for CAFOs, claims the lawsuit.

The lawsuit arises under the Clean Water Act’s “citizen suit” provision, which allows a citizen who has been or may be adversely affected to file a claim against someone who is violating the Clean Water Act or against an EPA Administrator that fails to perform any non-discretionary act or duty under the Clean Water Act.

While the CWA citizen suit provision grants citizens the right to enforce the law, citizens must also satisfy the “legal standing” doctrine of the U.S. Constitution’s Article III, which requires a suing party to have personally suffered actual or threatened injury that can fairly be traced to the defendant’s actions and for which the court can provide a remedy.  Thus, the Askinses must be able to prove that they have suffered or will suffer particular injuries from the transfer of NPDES permit authority to ODA, from Ohio EPA’s failure to notify of the transfer and from the U.S. EPA’s failure to approve the transfer or withdraw authority, and must also show that the injunctions and orders they seek from the court will address their injuries.   A review of the Askins’ complaint, however, does not indicate the injuries the couple claim to have suffered or will suffer due to the agencies' alleged violations of the Clean Water Act.

Read the complaint in Askins v Ohio Dept. of Agriculture here.