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.
Legislation intended to reduce the occurrence of harmful algae blooms in Ohio passed the Ohio Senate on February 18 after a fast track through the Senate Agriculture Committee. The enacted version of Senate Bill 1 varies somewhat from the original bill introduced on February 2 by Senators Randy Gardner and Bob Peterson, but maintains a primary goal of prohibiting certain types of fertilizer and manure applications in Ohio's western basin in winter and rainfail weather conditions along with addressing other potential contributors to the algae problem.
Revised from the original SB 1 were proposals to transfer the Ohio Agricultural Pollution Abatement Program to the Ohio Department of Agriculture, create a new Office of Harmful Algal Blooms and prohibit all open lake disposal of dredge material in Lake Erie and its tributaries. The committee also tabled several attempts to amend the bill before sending it to the full Senate. Those proposals included extending the bill's fertilizer and manure application prohibitions to the entire Lake Erie watershed, establishing a daily fine for violators of $333, removing the five year sunset, changing certification requirements for anyone using manure from a facility regulated by Ohio's Livestock Environmental Permitting Program and requiring standards for testing water for microcystin.
The legislation passed by the Senate includes the following provisions:
Application of fertilizer and manure
- Prohibits the surface application of fertilizer or manure in the western basin of Lake Erie on frozen or snow-covered soil or when the top two inches of soil are saturated from precipitation.
- Prohibits the application of fertilizer in the western basin in granular form 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.
- Prohibits the application of manure in the western basin when the local weather forecast contains greater than a 50% chance of precipitation exceeding one-half inch in a 24-hour period.
- Provides exceptions from the prohibition for applications of fertilizer or manure that are injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.
- Provides an exception from the prohibition for applications of manure made in the event of an emergency with written consent of the chief of the division of soil and water resources and in accordance with procedures established in the USDA natural resources conservation service practice standard code 590.
- Clarifies that the prohibition on fertilizer or manure applications does not apply to or affect any restrictions for facilities permitted under Ohio’s concentrated animal feeding facilities law.
- Defines “fertilizer” as nitrogen or phosphorous.
- Defines the “western basin” as the St. Mary’s, Auglaize, Blanchard, Sandusky, Cedar Portage, Lower Maumee, Upper Maumee, Tiffin, St. Joseph, Ottawa and River Raisin watersheds.
- Grants investigation and enforcement authority for potential violations to the Director of Agriculture for fertilizer applications and the Chief of the Division of Soil and Water Resources for manure applications and allows each agency to establish by rule the civil penalty amounts for violations.
- Requires a “sunsetting” of the above prohibition in five years, but requires the agriculture committees of the Ohio House and Senate to jointly review the effectiveness of the prohibitions, determine whether to prevent the sunset and to submit a report of findings to the Governor of Ohio.
Ohio Agricultural Pollution Abatement Program
- Declares that it is the intent of the General Assembly that legislation transferring the administration and enforcement of the Agricultural Pollution Abatement Program from the Department of Natural Resources to the Department of Agriculture shall be enacted not later than July 1, 2015.
Harmful Algae Management
- Appoints the Director of the Ohio Environmental Protection Agency or his/her designee as the coordinator of harmful algae management and response.
- Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
- Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.
Nutrient loading to Ohio watersheds
- Authorizes the Director of Environmental Protection to study, calculate and evaluate nutrient loading to Ohio watersheds from point and nonpoint sources and to determine the most environmentally beneficial and cost-effective mechanisms to reduce nutrient loading.
- Requires the Director or the Director's designee to report and update the study's results to coincide with the release of the Ohio Integrated Water Quality Monitoring and Assessment Report.
Phosphorous monitoring for publicly owned treatment works
- Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
- Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.
Dredged material in Lake Erie and tributaries
- Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
- Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
- Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.
- Revises the definition of "lead free" and prohibits using or selling certain plumbing supplies and materials that are not lead free for public water systems or in a facility providing water for human consumption, with stated exceptions.
- The bill declares an emergency and would be effective immediately.
Visit this link to review SB 1. The Ohio House of Representatives is currently considering its proposal to address algal blooms, with action expected on the proposal in the next few weeks.
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.
House Committee Sets Out to Address Water Quality
The 131st session of the Ohio General Assembly is underway with a few changes to the structure and leadership of the committees that address agriculture. In the House of Representatives, the previous Agriculture and Natural Resources Committee has been renamed as the Agriculture and Rural Development Committee. Natural resource issues, previously handled with agriculture under the old committee structure, will now go to a newly formed Energy and Natural Resources Committee. The committee modifications echo similar changes made last session in the Senate.
Brian Hill (R-Zanesville) will serve as the new chair of the House Agriculture and Rural Development Committee, with Tony Burkley (R-Payne) as vice chair and John Patterson (D-Jefferson) as the ranking minority member. Other committee members are Terry Boose (R-Clarksville), Jim Buchy (R-Greenville), Jack Cera (D-Bellaire), Christina Hagan (R-Marlboro Township), Steve Kraus (R-Sandusky), Sarah LaTourette (R-Bainbridge Township), Michael O’Brien (D-Warren), Sean J. O’Brien (D-Bazetta), Bill Patmon (D-Cleveland), Debbie Phillips (D-Albany), Wes Retherford (R-Hamilton ), Jeff Rezabek (R-Clayton), Margaret Ann Ruhl (R-Mt. Vernon), Tim Schaffer (R-Lancaster), Michael Sheehy (D-Oregon), Andy Thompson (R-Marietta), A. Nino Vitale (R-Urbana) and Paul Zeltwanger (R-Mason).
The House Agriculture and Rural Development committee will kick off its work with a prominent issue: water quality. Speaker Cliff Rosenberger has stated that water quality will be a priority issue that the House "needs to address and address quickly." Late last session, the House attemped to mitigate algal issues in Ohio lakes by passing legislation that would have affected applications of livestock manure and chemical fertilizers (HB 490). The legislation failed to pass the Ohio Senate and expired on December 31, 2014 with the end of the legislative session. This week, the House Agriculture and Rural Development Committee will revisit those issues when it meets off-site for a hearing at Cooper Farms in Van Wert to discuss water quality, nutrient management and agriculture. Expert witnesses in agriculture and watershed management will present testimony and address questions from the committee.
On the Senate side of the new legislative session, the Senate Agriculture Committee will continue under the leadership of Cliff Hite (R-Findlay), with vice chair Joe Uecker ((R–Miami Township) and ranking minority leader Lou Gentile (D-Steubenville). Other committee members are Bill Beagle (R–Tipp City), Dave Burke (R-Marysville), Capri S. Cafaro (D-Hubbard), Randy Gardner (R-Bowling Green), Gayle Manning (R-North Ridgeville), Bob Peterson (R-Sabina) and Michael J. Skindell (D-Lakewood). The Senate Agriculture Committee does not currently have any hearings on its schedule.
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
In response to the recent drinking water ban in Toledo, three senators from Ohio's Lake Erie counties have introduced SB 356 to expand and accelerate fertilizer certification legislation passed earlier this year. Senators Brown, Cafaro and Turner's proposal would add "manure" to the definition of "fertilizer" for purposes of the fertilizer certification program enacted this May in SB 150. Whether or not manure applications should fall under the fertilzer certification requirement was a point of much debate in committee hearings for SB 150, with the legislature ultimately deciding to exclude manure applications from the new certification program.
SB 356 would also significantly change the deadline for fertilizer applicators to become certified--from September 30, 2017 to December 31, 2014. This change of deadline, which appears impracticable if not impossible, would require the Ohio Department of Agriculture (ODA) to establish the regulations for the fertilizer certification program and offer certification training so that any persons desiring to apply fertilizers after December 31, 2014 could become certified through the new program. Currently, SB 150 gives ODA and fertiler applicators three years to establish the new fertilizer certification program and complete certification training.
S.B. 356 is the first of several legislative proposals we expect to see in response to Toledo's water concern. The bills will likely present different approaches to address phosphorous runoff, which many point to as the cause of the algae problem. Representative Sheehy has announced his intent to introduce legislation soon that would limit applications of manure on frozen or snow-covered ground and would expand manure storage requirements for livestock operations.
A statewide Ohio Lake Erie Phosphorous Task Force formed in 2009 issued its second report and recommendations for addressing phosphorous in Ohio waterways last October.
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.
The recently enacted Water Resources Reform and Development Act of 2014 established a new mandate to the U.S. EPA: change how EPA enforces the federal Spill Prevention, Control and Countermeasure (SPCC) rule against the nation’s farms. Following several years of conflict between EPA and the agricultural community, Congress intervened with a plan to reduce the SPCC rule’s impact on agriculture. The new law clarifies which farms must have certified SPCC plans that address fuel storage and spill response practices; the law also directs EPA to study and adjust the exemption levels within the next three years.
Which farms must comply with the SPCC rule?
Here is an explanation of how the new law affects SPCC rule requirements for farms. Note that the exemption level could change after EPA conducts its required study, explained below.
- Farms that must have a professionally certified SPCC plan
Farms in this category must have an SPCC plan that is certified by a professional engineer. This category includes farms that have any of the following:
- An individual aboveground tank with storage capacity over 10,000 gallons;
- An aggregate aboveground storage capacity of 20,000 gallons or more;
- A "reportable oil discharge history."
- Farms that can self-certify their SPCC plans
Farms with moderate fuel storage and no history of reportable discharges must have an SPCC plan, but the owner or operator of the farm can self-certify the plan. Farms in this category include those that:
- Have an aggregate aboveground storage capacity of 6,001 to 20,000 gallons
- And do not have a "reportable oil discharge history."
- Farms that are exempt from SPCC compliance
The EPA may not require compliance with the SPCC rule for any farm that:
- Has an aggregate aboveground storage capacity of less than 6,000 gallons.
Changes to aggregate capacity calculations will affect SPCC's reach
The new law also changes which fuel storage containers a farm must include when calculating its aggregate fuel storage capacity. This change could significantly impact whether a farm falls into the exempt, self-certified or professionally certified plan category. Previously, the SPCC rule required a farm to include any storage container of 50 gallons or more in its aggregate capacity calculation. Under the new law, a farm may now exclude these fuel storage containers from its calculation of capacity:
- All containers on separate parcels that have a capacity of 1,000 gallons or less;
- All containers holding animal feed ingredients approved for use in livestock feed by the Commissioner of Food and Drugs.
EPA must study discharge risks
The SPCC compliance requirements could change after the EPA completes the mandated study. The law requires EPA to consult with the Secretary of Agriculture to conduct a study within the next year to determine the amount that is appropriate for an SPCC rule exemption, based on whether there is significant risk of an oil discharge to water. Within 18 months of completing the study, the EPA may adjust the SPCC exemption level to not more than 6,000 gallons and not less than 2,500 gallons. This provision gives EPA an opportunity to lower the exemption beneath the current 6,000 gallon minimum if the agency can prove that there is significant risk of oil discharges on farms with fuel storage capacity between 2,500 and 6,000 aggregate gallons.
What is the SPCC rule compliance date for farms?
Surprisingly, the new law does not remove the uncertainty surrounding the deadline for a farm to comply with the SPCC rule. Maneuverings by Congress prevented EPA from enforcing the original May 13, 2013 compliance deadline until September 24, 2013. After that date, a letter from several members of Congress advised the EPA Administrator not to enforce the rule at all until Congress enacted new legislation that would exempt most farms from the rule. With the new law in place, will the EPA now enforce SPCC plan requirements against a farm? If so, then a farm that is subject to the rule could face penalties for non-compliance if it has an oil discharge and does not have its SPCC plan in place. Given that possibility, farms that fall under the new SPCC requirements should act quickly to develop their SPCC plans.
A few definitions from the SPCC rule, unchanged by the recent legislation, are helpful to understanding the rule’s application.
- Farm means a facility on a tract of land devoted to the production of crops or raising of animals, including fish, which produced and sold or normally would have produced and sold $1,000 or more of agricultural products during a year.
- Oil means oil of any kind or in any form, including, but not limited to: fats, oils, or greases of animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and, other oils and greases, including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil.
- Reportable oil discharge history means either a single oil discharge over 1,000 gallons or two oil discharges that each exceeded 42 gallons and that occurred within any 12-month period in the 3 years prior to the farm’s required SPCC certification date.
For more on the SPCC rule, see the EPA's SPCC page.
The Ohio House of Representatives gave final approval on May 21, 2014 to a bill initiated in the Senate that addresses invasive plants. As approved by both chambers, Senate Bill 192 grants regulatory authority over invasive plants to the Ohio Department of Agriculture (ODA). While ODA, Ohio EPA and Ohio's Division of Forestry already have programs in place to educate and assist in the identification and removal of invasive species, the new law clarifies that the director of ODA has "sole and exclusive authority to regulate invasive plant species in this state." This authority includes the identification of invasive plant species and the establishment of prohibited activities regarding invasive plants.
The bill defines "invasive plant species" as:
"plant species that are not native to this state whose introduction causes or is likely to cause economic or environmental harm or harm to human health as determined by scientific studies."
A committee amendment to the bill clarifies that the definition of invasive plant species does not include "cultivated plants grown as food or livestock feed in accordance with generally accepted agricultural practices, including all plants authorized by the animal and plant health inspection service in the USDA." In committee hearings, the Ohio Invasive Plants Council expressed serious concerns about this exclusion for cultivated crops. The group's concern is that ODA would not have authority to evaluate plants with invasive properties if they are grown for livestock feed. Other groups have raised similar worries about plants with invasive characteristics grown for biofuel production. The Ohio Farm Bureau submitted testimony supporting the exemption, stating that the federal government already regulates plants grown for agricultural crops.
The bill contains one exception to ODA's authority over invasive plant regulation. The director of Ohio EPA may continue to consider invasive plant species when evaluating applications and permits for wetlands under Ohio's Water Pollution Control Act. Once ODA develops invasive plant regulations, however, the EPA must refer to ODA's list of invasive plant species when reviewing wetland applications and permits.
Read S.B. 192 here.
The Ohio Legislature is one step closer to creating a unique fertilizer applicator certification program for Ohio agriculture. The Ohio House of Representatives recently approved the measure in S.B. 150, which had already passed the Senate in January (see our related post.) The legislation aims to reduce fertilizer runoff into Ohio's waters in response to recent problems with algae blooms in Lake Erie and Grand Lake St. Mary's. Other states with fertilizer applicator certification programs focus on professional, turf or urban applications of fertilizer, but Ohio's program would require farmers applying fertilizers on their own land to complete the knowledge-based certification program.
An amendment by the House extends the certification requirement to anyone applying fertilizer for agricultural production on more than 50 acres of land, rather than on more than 50 "contiguous" acres as approved by the Senate. The amendment will likely expand the program to more smaller-acreage farmers. Although urged to do so, neither the House of Representatives nor the Senate agreed to extend the proposal even further by including "manure" in the definition of "fertilizer."
The Senate must now approve the House-amended version when it reconvenes in early May. Upon Senate approval, the legislation would move to the Governor by mid-May. If enacted, the bill gives the Ohio Department of Agriculture three years to establish and implement the fertilizer applicator certification program. The bill also contains provisions for voluntary nutrient mangement plans, operation and management plans for animal feeding operations, and a few changes to Ohio's fertilizer license laws.
Watch for our final analysis of S.B. 150 as it continues the legislative process next month.