The Ohio Department of Agriculture (ODA) has announced that pesticide applicators, commercial sensitive crop producers and apiaries may now use the online Ohio Sensitive Crop Registry (OSCR). ODA developed OSCR as a “voluntary informational tool designed to allow stakeholders an effective way to communicate and protect pesticide-sensitive crops and apiaries.” The registry will enable applicators to determine whether there are any sensitive crops in an area before applying pesticides.
How does the registry work?
ODA designed the tool for registered apiaries and "commercial" sensitive crop producers who produce at least one-half acre of a single type of sensitve crop. The ODA defines sensitive crops as follows:
Apiaries – any ODA-registered apiary
Aquaculture – a location with any fish and other aquatics grown outdoors
Brambles – aggregated total of fruit such as raspberries and blackberries of at least .5 acres
Certified Organic – an organic farm certified by a USDA-accredited agent; certified organic crops, forage, and livestock of at least .5 acres
Nurseries – nursery stock and flowers of at least .5 acres
Greenhouse/High Tunnels – must be for commercial use and produce at least .5 acre of any combination of crops annually
Orchards – fruit or nut-producing trees of at least .5 acres
Grapes – vineyards of at least .5 acres
Tomatoes – all tomato cultivars of at least .5 acres
Fruit (other) - non-tree simple, aggregate and multiple fruits of at least .5 acres, excluding tomatoes, grapes, and brambles
Herbs – herbs and plants for spices of at least .5 acres
Vegetables – root and leafy vegetables, legumes, and pumpkins of at least .5 acres
Registration on OSCR is completely voluntary; a sensitive crop producer may create an account on the OSCR website and map the locations of their crops. ODA will then verify the producer's information before it is available on the registry. Private and commercial pesticide applicators may also voluntarily register on the site. If approved by ODA, an applicator may search the registry to identify the locations of sensitive crops and apiaries. The registry includes a mapping tool with options to search by address, parcel number, township, county, city, village and other methods.
It is important to note that the information provided in the registry is not available to the general public. It is only available to those who have registered on OSCR and have been verified by ODA.
Implications for crop producers and pesticide applicators
The registry offers a good risk management tool to sensitive crop producers. By allowing producers to communicate the existence of sensitive crops, which are typically not as easily observed as other crops, the registry should reduce pesticide drift impacts. One possible implication for sensitive crop producers is the risk of sharing crop information through the registry, but the ODA verification process should minimize potential misuse of registry information.
Reduced drift impacts will also benefit pesticide applicators who use OSCR. However, the voluntary nature of the registry raises potential implications for pesticide applicators. What is the liability exposure for an applicator who knows the registry is available but chooses not to use the tool? Could a harmed party argue that an applicator "should have known" about a sensitive crop because it was registered? Does the availability of the information create a new legal duty for pesticide applicators--a duty to take the additional step to identify nearby sensitive crops? Could an insurer refuse to cover an applicator who failed to consult the registry? Until Ohio courts receive and answer these legal questions, we don't have clear answers.
The caution to pesticide applicators, then, is to take the OSCR seriously. Don't overlook the registry because participation is "voluntary" rather than mandatory. The registry can provide important information that could reduce pesticide exposure to sensitive crops; a pesticide applicator who fails to utilize the information might be increasing his or her potential liability if pesticide drift occurs.
To learn more about the Ohio Sensitive Crop Registry, visit: http://www.agri.ohio.gov/scr/.
The Ohio Senate has approved a bill directing the Ohio Department of Agriculture (ODA) to establish a fertilizer applicator certification program in Ohio. The sponsors of Senate Bill 150, Senator Cliff Hite and Senator Bob Peterson, designed the legislation to address agricultural nutrient runoff into Ohio waterways and the algae problems in Grand Lake St. Marys and Lake Erie. According to Senator Hite, the bill hinges on a new education and certification program that will give farmers additional information about fertilizer and nutrient use best practices.
Here are answers to a few basic questions farmers might have about the proposed program:
When would the program begin? If the bill is passed by the Ohio House of Representatives, the fertilizer application certification program would begin on September 30 on the third yearsfollowing the law’s effective date.
Who would have to be certified? Someone who applies “fertilizer” for agricultural production on land more than 50 acres in size would have to be certified by ODA as a fertilizer applicator, or would have to be acting under the instruction of a certified fertilizer applicator.
Would there be any exemptions from the program? Those who would make applications of fertilizer on land parcels of 50 acres or less would be exempt from the certification requirement. The bill would also allow the ODA director to establish additional exemptions for certain persons or certain “types of cultivation.”
What fertilizers would the program cover? Under the bill, “fertilizer” means any substance containing nitrogen, phosphorus, or potassium or any recognized plant nutrient element or compound that is used for its plant nutrient content or for compounding mixed fertilizers. The definition of fertilizer does not include lime, manure and residual farm products such as bedding, wash waters, waste feed, silage drainage and certain dead animal composts, unless those are mixed with fertilizer materials or distributed with a guaranteed analysis.
What would the certification program involve? The Senate’s bill directs that the program must educate applicants on the time, place, form, amount, handling, and application of fertilizer—commonly referred to as the "4-Rs" of nutrient stewardship (right fertilizer source at the right rate, at the right time and in the right place). The bill also states that the program must "serve as a component of a comprehensive state nutrient reduction strategy addressing all sources of relevant nutrients" and must "support generally practical and economically feasible best management practices."
Would there be a certification fee? The bill allows the ODA to establish a fee for applicants who seek certification, but the fee may not exceed the fee charged for the state’s pesticide applicator certification program. Additionally, the bill exempts persons who hold an Ohio commercial or private pesticide applicator’s license from paying an additional application fee if they also seek fertilizer application certification.
Other important provisions in Senate Bill 150 include:
Recordkeeping requirements. Certified applicators would have to maintain fertilizer application records for at least three years from the date of a fertilizer application. The records must include the date, place and rate of application, an analysis of the fertilizer and the name of the person applying the fertilizer. Applicators would not be required to submit the records to ODA on a regular basis, but would have to make the records available upon a request by the agency.
Emergency revocation and suspension powers. The bill would allow the ODA director to immediately deny, suspend, revoke, refuse to renew or modify a fertilizer applicator certificate if there is "substantial reason to believe the certificate holder recklessly applied fertilizer in such a manner that an emergency exists that presents a clear and present danger to human or animal health."
Voluntary Nutrient Management Plans. The bill would allow a person who owns or operates agricultural land to develop a voluntary nutrient management plan in collaboration with Ohio State University, the Soil and Water Conservation District or the Natural Resource Conservation Service or its certified providers and submit the plan for approval by the Soil and Water Conservation District. A voluntary nutrient management plan would be an important critieria for immunity from civil liability, discussed below.
Legal Defense against Civil Actions. Under the bill, a person sued in a claim involving liability for an application of fertilizer would have a legal defense that would prevent liability upon showing these three criteria:
- The person is a certified fertilizer applicator or under the control of a certified applicator;
- The person properly maintained fertilizer application records as required by the certification program;
- The fertilizer was applied according to and in substantial compliance with an approved voluntary nutrient management plan.
Watch now for the agricultural nutrient management bill to be introduced in the Ohio House of Representatives for final approval. More information about S.B. 150 is available here.
Confusion at Federal Level Leaves Farmers Unsure of SPCC Rule Compliance
Peggy Hall, Asst. Professor, OSU Extension Agricultural and Resource Law Program
A common joke among attorneys is that the answer to every legal question is "maybe," and that answer is appropriate when asking whether farms will be exempted from complying with the Oil Spill Prevention, Containment and Countermeasure (SPCC) rule.
May 10, 2013 was the compliance deadline for the EPA rule requiring SPCC plans for farms storing above a threshold amount of oil. But several legislators have spoken out against the regulation and intend to exempt most farms from its requirements. As we reported in an earlier post, legislators successfully delayed EPA's ability to enforce the SPCC rule against farms until September 23, 2013, and also drafted the legislation to exempt many farms from the SPCC rule. But while the Senate and House have each passed proposals with SPCC exemption language, they've used two different bills to do so--the Senate's Water Resources Development Act and the House's Farm Bill. Neither bill has passed both chambers and the SPCC exemption remains in limbo today, the date after which the EPA may begin enforcing the rule.
In mid-August, two sponsors of the exemption, Senators Inhofe (R-OK) and Pryor (R-AR), sent a letter to EPA Administrator Gina McCarthy regarding SPCC enforcement. The letter clarified that Congress plans to exempt most farms from the rule and suggested that the EPA should not attempt to retroactively enforce the rule back to the original compliance date of May 10, 2013. Time will tell whether the senators' letter will prevent EPA from penalizing farms that did not have an SPCC plan by May 10 but had an oil spill anytime after the May 10 compliance deadline.
What Should Farmers do about SPCC Plans now?
Farmers who have been waiting to see if Congress would exempt them from the SPCC rule have to make a decision: comply now or risk penalties for non-compliance. A few considerations may help the decision-making process:
- Operating without an SPCC plan carries financial risk. If a farm that is subject to the SPCC rule does not have a plan but does have an oil spill that discharges into a waterway, the farm will incur additional penalties for failing to have and implement an SPCC plan. These penalties vary depending upon the size of the facility and the severity of the spill; our research revealed recent fines ranging from $1,500 to over $55,000. Our research also shows the cost of an SPCC plan from a certified engineer or consulting firm to begin at around $1,000, with higher costs for larger farms.
- Only certain farms must comply with SPCC. Farms that store less than 1,320 gallons of diesel, gasoline, hydraulic oil, lube oil, crop oil or vegetable oil aboveground or less than 42,000 gallons below ground do not need an SPCC plan. All other farms might need an SPCC plan if it's possible that spilled oil could discharge into a waterway. To learn more about whether a farm is subject to the SPCC plan rule, visit here.
- Smaller, lower-risk farms can "self-certify" their SPCC plan. The SPCC rule allows farms with smaller oil storage and no history of significant oil spills ("Tier I farms") to create and implement an SPCC plan; other farms require certification by an engineer. The EPA provides a model template for Tier I farms on their website. Be aware, however, that preparing the plan requires some work: a thorough assessment of the farm's oil storage, selection and installation of appropriate containment measures and proper training and response practices. For those who don't want to prepare their own plan, consider a consultant. Consulting companies offer services such as assessment, consultation, plan development, certification and future inspections.
- A farm may be able to seek a compliance deadline extension. The SPCC rule allows a farm that couldn't meet the compliance deadline to submit a written request for an extension to the EPA regional administrator for the state where the farm is located. There are several reasons EPA may grant an extension: because a Professional Engineer (PE) isn’t available to create and certify a plan, if the farm is located in an area impacted by floods, or because facility modifications could not be completed before the deadline. For more on seeking an extension, visit this link.
- Insurance coverage may be at risk. Non-compliance with the law can negate insurance coverage; most insurers would likely deem the failure to have an SPCC plan after September 23, 2013 as "non-compliant."
- Oil storage containment is good risk management. Even without the SPCC rule, assessing and managing oil storage and handling practices on the farm can pay off. Consider the recent case of an Ohio farm with a leaking oil tank that polluted a nearby waterway; the farm paid over $15,000 in fines and cleanup costs.
While "maybe" is a good answer to whether Congress will exempt many farms from the SPCC rule, it isn't a good answer to whether farmers should ignore the SPCC regulation because of the confusion in Congress. For more on SPCC and agriculture, visit the EPA's web page.
Catharine Daniels, Attorney, OSUE Agricultural & Resource Law Program.
Back in April, we alerted readers to Congress delaying the requirement for farm oil spill prevention plans (find post here). The US EPA had set a deadline of May 10, 2013 for all farms to have their Oil Spill Prevention, Control, and Countermeasure (SPCC) Plans in place. However, Congress delayed EPA’s ability to enforce the regulation until September 26, 2013, under an amendment to H.R. 933. While this delay in enforcement may cause some farmers to think twice about preparing or amending an SPCC plan, a recent Ohio Court of Appeals decision shows how costly fuel spills can be and highlights the importance of good fuel management practices on the farm.
In Ohio Environmental Protection Agency v. Lowry, a 250-gallon fuel tank in Jefferson Township had rusted through and completely drained 250 gallons of fuel oil that had been filled just a few days before. The Jefferson Township Fire Department received a call about a fuel odor coming from the property where the fuel tank was located and a “visible sheen” was evident on a local waterway. The fire department contacted the Ohio Environmental Protection Agency (OEPA) because the spill was over 50 gallons. OEPA sent a response team to assess the damage and work with the property owner to remedy the situation. OEPA informed the property owner that he should obtain a contractor to clean up the fuel and that if he failed to do so, OEPA would secure a contractor and bill the property owner for the costs as authorized by Ohio law in Ohio Revised Code Section 3745.12.
The property owner failed to obtain a contractor for the clean up. OEPA hired Environmental Enterprises, Inc. to perform the work and presented the property owner with the bill for $15, 855.92. The matter proceeded to court, where the property owner argued that because petroleum spills are exempt from chargeable cleanup costs under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), the court should interpret Ohio's law similarly and exempt him from cleanup liability. The trial court did not agree.
The Court of Appeals also disagreed with the property owner, stating that even if fuel oil is considered a hazardous substance for purposes of the federal CERCLA, the federal law “does not control the determination" of whether a spill posed a risk to the environment requiring emergency action under Ohio law. According to Ohio Revised Code Section 3745.12, any person responsible for the unauthorized spill, release, or discharge of material into or upon the environment “that requires emergency action to protect the public health or safety or the environment,” is liable to OEPA for costs incurred in the cleanup. Ohio law focuses on when emergency action is required as opposed to CERCLA's approach of defining types of hazardous waste cleanups allowed as chargeable cleanup costs.
The lesson from the Lowry case is that even though the US EPA cannot currently enforce the requirement for SPCC plans, farmers should take fuel management seriously. OEPA has the authority to respond to a fuel spill and require a property owner to pay for the cleanup, which can be costly. Though not now required by federal law, farmers should take all precautions when managing fuel and minimize the risks of a fuel spill.
Read full case here.
SPCC Rule will not be enforced against farms until September of 2013
Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program
Many farms are scrambling to meet the upcoming May 10, 2013, deadline for having an oil spill containment plan (SPCC plan) as required by EPA regulations, but Congress has quietly delayed the U.S. EPA's ability to enforce the regulation. Amendment 29 to the recently enacted funding bill, H.R. 933, states that the U.S. EPA may not use any of its funds to enforce the SPCC rule against farms for a period of 180 days, until after September 26, 2013.
The purpose of the U.S. EPA's Spill Prevention Control and Countermeasures (SPCC) program is to help facilities and farms prevent a discharge of oil into navigable waterways. Program regulations affect farms that store more than 1,320 gallons of oil or oil products in aboveground containers or more than 42,000 gallons in completely buried containers--those farms are required to develop, maintain and implement an oil spill prevention plan by May 10, 2013.
The recent action by Congress, however, prevents the EPA from enforcing the plan until late September. In the meantime, congressional efforts will focus on revising the SPCC rule as it applies to farm SPCC plans. Senator Inhofe (OK), who sponsored the amendment to delay enforcement, has already co-sponsored a bill (S. 496) with Senators Pryor (AR) and Boozman (AR) to provide more exemptions for small farms and help farms reduce compliance costs.
What should farmers do now about SPCC plans? The future of the SPCC rule is uncertain, but we do know that the current deadline of May 10 can't be enforced by the EPA. Farmers who are currently subject to the regulation must decide whether to proceed with compliance and be prepared for a possible September deadline, or wait and see if Congress changes SPCC requirements before the end of September. If a farmer is subject to an attempted enforcement action after the May 10 deadline, contact legal counsel right away. For those who have already developed SPCC plans, be assured that the plan may still be required in the future and could also be a useful tool for reacting to an oil spill that could contaminate a waterway and reducing your environmental liability risk. For more information about the SPCC rule, visit here.
Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law
It’s the time of year when farmers clear fields and fence rows of corn stalks, branches and other debris and use a common management practice--piling the debris and burning it in the field. Because outdoor fires such as this create air emissions and wildfire concerns, Ohio has laws that regulate open burning activities. Burning certain materials at certain times in certain places may violate the open burning laws and cause a health or safety issue. It’s important to know when open burning of crop debris and field residue is permissible, and to take precautions to minimize risk and liability.
There are several areas of law in Ohio that address open burning. The Ohio Environmental Protection Agency (OEPA) oversees regulations on the open burning of materials that may produce harmful air emissions that affect human and environmental health. Ohio also has laws that regulate open burning to minimize the danger of wildfires; these laws may be enforced by the Ohio Department of Natural Resources (ODNR) Division of Forestry or local law officials. Additionally, a local government might have local ordinances that regulate open burning.
In regards to crop debris in farm fields, it is typically permissible for a farmer to burn the debris. However, the law creates duties to conduct the burn responsibly and imposes some conditions on what, where and when to burn. Violating the laws can lead to criminal charges, fines and civil liability to harmed parties.
What can you burn?
Ohio law allows the burning of “agricultural wastes” under certain conditions. The definition of agricultural waste includes materials such as crop debris, as well as other materials. According to Ohio law, agricultural waste includes:
- Waste material generated by crop, horticultural, or livestock production practices, landscape wastes that are generated in agricultural activities and woody debris and plant matter from stream flooding.
- Bags, cartons, structural materials and containers for pesticides, insecticides, fungicides, rodenticides, miticides, nematocides, fumigants, herbicides, seed disinfectants and defoliants, if the manufacturer has identified open burning as a safe disposal procedure. Farmers may add seed bags and cartons to the burn pile as long as the label states that open burning of the materials is safe.
Agricultural waste does not include:
- Standing or fallen buildings, building materials, food waste, dead animals, materials made from petroleum or containing plastic, rubber, grease or asphalt. A farmer may not add these materials to the burn pile.
- Debris resulting from the clearing of land for new agricultural, residential, commercial or industrial development—this type of waste is defined as “land clearing waste.” Open burning of land clearing waste requires prior written notification to Ohio EPA.
Where can you burn?
Several regulations determine acceptable locations for burning crop debris and other agricultural waste:
- Agricultural waste may only be burned on the property where the waste is generated; the waste may not be taken to a different property for burning and a farmer cannot receive and burn waste from another property.
- If the burning is inside a “restricted area,” then prior written notice to Ohio EPA must be provided at least ten days in advance of the burning. A “restricted area” is an area where there is higher population density. The law defines a restricted area as:
- Any area inside city or village limits.
- Any area within the 1,000-foot zone outside of a city or village with a population of 1,000 to 10,000.
- Any area within a one-mile zone outside of a city or village with a population of more than 10,000.
- The fire must occur in a location where it will not obscure visibility for roadways, railroad tracks or air fields.
- The fire must be more than 1,000 feet from any neighboring building inhabited by people, such as homes, stores, restaurants, schools, etc.
When can you burn?
There are definite times when burning of crop debris and other agricultural waste is not permitted unless certain conditions are met.
- Ohio’s wildfire laws limit open burning in rural areas during the months of March, April, May, October and November, when wildfire risk is highest due to dry vegetative conditions and dry winds. During these months, open burning in rural areas is completely prohibited between the hours of 6 a.m. and 6 p.m., when volunteer fire departments are not well-staffed. An exception to this prohibition applies to farmers under the following conditions:
- Open burning may occur in a plowed field or garden, if the burn pile is at least 200 feet from any woodland, brush land or field containing dry grass or other flammable material. If a farmer can’t meet this 200 foot buffer zone requirement, the farmer should wait until after 6 p.m. to conduct the burn.
- Open burning should only occur when atmospheric conditions will readily dissipate any smoke and potential contaminants. If weather conditions are foggy, rainy or causing air inversions, smoke and contaminants will not readily disperse and the farmer should not burn the materials.
- Even if all other legal requirements for open burning are met, open burning is not allowed when air pollution warnings, alerts or emergencies are in effect.
What about prescribed burning?
Both the ODNR and Ohio EPA have authority over prescribed burning—intentional burns for horticultural, silvicultural, range or wildlife management practices. Prescribed burning requires prior written permission from Ohio EPA and--if taking place during March, April, May, October or November--the burn must be conducted by a Certified Prescribed Fire Manager with permission by the Chief of ODNR’s Division of Forestry. See the Division of Forestry’s website for more information on becoming a Certified Prescribed Fire Manager and requesting permission for prescribed burns.
Prior notice to Ohio EPA
For burns that require advance notice to the Ohio EPA, farmers may use the notification form on the Ohio EPA website at http://www.epa.ohio.gov/dapc/general/openburning. The form seeks information about what will be burned and when and where the burn will take place; this allows the EPA to ensure that the burn is permissible.
Legal duties for conducting open burning
Ohio law also imposes duties for managing open burns. Ohio Revised Code 1503.18 establishes a duty to prevent fire escape. The law requires any person who starts a fire near trees, woodland or brush land to take steps to prevent the fire from escaping. All leaves, grass, wood and inflammable material surrounding the place must be removed to a safe distance and all other reasonable precautions must be taken to keep the fire under control. The law also states that a person should extinguish or safely cover an open fire before leaving the area.
Ohio EPA’s regulations impose several other duties for managing burns. As mentioned above, burning of agricultural waste should take place at least 1,000 feet from any neighbor’s inhabited buildings. The wastes should be stacked and dried to provide the best practicable condition for efficient burning and weather conditions should not prevent dispersion of the smoke and emissions. If the size of an agricultural waste pile exceeds 20 feet in diameter by 10 feet in height (or 4,000 cubic feet), the farmer must provide written notification of the burn to the Ohio EPA at least ten days before burning.
The above analysis explains Ohio’s laws on open burning; remember that the local government might have a local law that also regulates burning activities. Check with your local fire department to know whether any local regulations apply to the situation.
What if a farmer violates open burning laws?
Violation of the open burning laws creates several risks for farmers. Ohio EPA has the authority to issue fines of up to $1,000 per day per offense. The EPA states that it takes enforcement action against repeat offenders or violations that cause significant harmful emissions. Otherwise, EPA enforcement officers prefer to issue warnings to first-time offenders and educate on how to conduct open burns that minimize pollution impacts. EPA enforcement officers regularly patrol their districts, investigate fires they see and investigate complaints from neighbors or others who report burning activities. According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes” such as tires and plastics, failing to meet the 1,000 foot setback requirement and burning waste from another property.
Conducting open burns that violate Ohio’s wildfire prevention laws can result in third degree misdemeanor charges, which carry penalties of up to $500 and 60 days of jail time per violation. Any person may report a potential illegal burn that creates wildfire risks to the local law enforcement or Division of Forestry.
Equally and perhaps more important is the risk of civil liability from an open burning incident. We all know that the “burn police” can’t observe everyone all the time, but civil liability doesn’t require intensive monitoring—it requires harm. Where an open burn causes harm to people or property, civil liability may arise. An open burn that reduces roadway visibility and results in an auto accident, escapes the property and harms neighbors or neighboring property or significantly interferes with other owners’ property use could result in a negligence or nuisance lawsuit. The farmer who violated open burning laws or failed to properly manage the fire could be liable for all harm resulting from the fire.
Bill establishes time limits for township and county infrastructure review
A bill approved by the Ohio General Assembly proposes limiting the amount of time county and township officials have for recommending local infrastructure needs for the operation or expansion of a Concentrated Animal Feeding Facility (CAFF). Both the House and Senate have approved H.B. 22, sponsored by Rep. Buchy (R-77). The bill now awaits action by Governor Kasich.
Recently introduced on May 17, 2011, H.B. 22 proposes a 75 day time limit for county commissioners and township trustees to provide final recommendations for improvements to local infrastructure that are needed to accomodate a CAFF. Notification by the CAFF to the county and township is a required step in the Livestock Environmental Permitting Program (LEPP) permit application process. Information on anticipated traffic routes and number and weights of vehicles must accompany the notification. Under current law, the county and township must next provide initial recomendations to the CAFF for needed infrastructure improvements. The CAFF may accept the recommendations or may propose an alternative, and the county and township must then render written final recommendations for infrastructure improvements. The CAFF must submit the county and township's final recommendations in its LEPP permit application.
Under the language agreed to by the legislature in H.B. 22, if the county or township fails to provide the written final recommendations in 75 days, the CAFF may proceed with the permit application by submiting an affidavit in lieu of the written final recommendations. The affidavit must state that the CAFF provided the required notification but did not receive written final recommendations from the county or township within 75 days of giving the notification.
The legislature's approval of H.B. 22 comes in the wake of a controversial denial of a LEPP permit application by Hi-Q for an egg laying facility in Union County. ODA Director Zehringer denied Hi-Q's application because it did not contain the required final infrastructure recommendations from county and township officials. Hi-Q and Union County had reached an impasse on infrastructure issues, and Hi-Q submitted the permit without any final recommendations by the county. (See our earlier post on the Director's decision.) Under H.B. 22's language, Hi-Q could have submitted an affidavit instead of the written final recommendations because more than 75 days had passed since Hi-Q's original notification to the county and township. The Director thus would not have had to deny the permit application for lack of county and township written final recommendations for infrastructure improvements.
H.B. 22 also proposes changing LEPP from a program to a Division of Livestock Environmental Permitting, and contains a number of other revisions to ODA programs and regulations. See the analysis of H.B. 22 on the Ohio Legislature's website.
Current bill in House would yield different outcome for Hi-Q CAFF permit
In a unique and controversial case, the Ohio Department of Agriculture (ODA) has denied an application under its Livestock Environmental Permitting Program for Hi-Q Egg Products, LLC to establish an egg laying facility in Union County. In denying the application, ODA Director Zehringer followed the recommendations made in April 2011 by the ODA hearing officer who reviewed the permit application (see our earlier post). The hearing officer had recommended denial on the basis of an incomplete application, because Hi-Q's application did not include a written statement from local officials certifying that final recommendations had been made for local infrastructure improvements and costs, as required by program regulations (OAC 901:10-1-02(A)(6)). Hi-Q claimed that the county and township failed to provide the recommendations, while the county and township argued that there were no final recommendations because Hi-Q refused to discuss an alternative transportation route. In agreeing that the recommendations were not included in the application, Director Zehringer stated that there was "no other viable option but to deny the [permit] due to an incomplete application."
Ohio's Livestock Environmental Permitting Program (LEPP) regulates the installation and operation of large Confined Animal Feeding Facilities (CAFFs). Critics have long complained that the program fails to consider the potential impacts of CAFF development upon the local community. Those concerned about local impacts have used the public hearing process to voice opposition to CAFF permits, but have never successfully prevented approval of a permit. Until now, the program's obscure requirement for county and township approval of infrastructure improvements has gone unnoticed as a prevention mechanism by such opponents.
While the Hi-Q denial is a first, opponents of large livestock operations won't have cause to celebrate the decision for long if a current legislative proposal meets with success. H.B. 229, introduced May 17, 2011 by Rep. Buchy, will place a time limit on the county and township officials who must consider local infrastructure improvements needed for a CAFF permit application. According to the proposal, local officials would have 75 days after receiving notice of the proposed facility to render a written statement on local infrastructure improvements and costs. After 75 days, the permit applicant may submit a notarized affidavit stating that it had provided local officials with notice but did not receive any written final recommendations from the local government within the required timeframe. Under the law as proposed by H.B. 229, ODA could not deny a permit application that lacks the written statement from local officials as long as 75 days have passed after giving notice and the permit applicant submits the notarized affidavit rather than the written statement from local officials.
In a case of first impression for Ohio, a hearing officer for the Ohio Department of Agriculture (ODA) is recommending that the ODA Director deny a CAFO permit application because it does not contain final recommendations on infrastructure improvements from county and township officials. The recommendation came as a result of a hearing on Hi-Q's permit application that took place last December, after ODA's previous Director, Robert Boggs, notified Hi-Q of his intent to deny the application for failure to include the local governments' recommendations on infrastructure.
The ODA hearing officer reviewed the notice of intended denial and Hi-Q's permit application and agreed that the application was not complete. Ohio's Livestock Environmental Permitting Program requires Hi-Q to attach to its application for a permit to install and permit to operate a facility the "written statements from the board of county commissioners of the county and the board of township trustees of the township in which the facility will be located, certifying that, in accordance with those sections, the applicant has provided the boards with the required written notification and that final recommendations, if any, regarding improvements and costs of improvements have been made by the boards." OAC 901:10-1-02(A)(6). According to the hearing officer, Hi-Q's application did not include the county and township recommendations.
Hi-Q's attorneys argued that the proposed poultry facility's permit was complete and that the Union County and York Township officials had failed to abide by the permitting program requirements by refusing to give recommendations. The apparent point of disagreement between the two sides relates to the fact that Hi-Q changed its transportation route after receiving written recommendations and requirements from the county and township on Hi-Q's original proposed transportation route. The county and township recommended that Hi-Q complete over $7 million in road improvements and pay $132,000 annually for maintenance of the original route. Hi-Q then proposed a new transportation route; the county and township never made final recommendations for improvements necessary for the new route. Both sides claim that the other side refused to discuss or agree upon recommendations for the new route.
In reaching its recommendation to deny the permit application on the basis of incompleteness, the ODA hearing officer stated that "[t]his matter garnered widespread media attention and polarized emotional support and opposition. The facts material to this recommendation are, however, essentially undisputed."
The hearing officer's recommendation will be forwarded to James Zehringer, the new Director of ODA appointed by Governor Kasich. Zehringer has the authority to make the final decision on whether to grant Hi-Q's application. If the Director denies Hi-Q's permit for failure to contain the local governments' recommendations, it will be the first time that local reaction to a proposed facility has negatively impacted a facility permit application in Ohio. Local opponents to CAFOs have unsuccessfully fought permit applications in many instances, but had no legal basis for denial. According to Ohio law, the ODA must approve a permit application if the applicant meets all of the requirements of the Livestock Environmental Permitting Program (LEPP); the only requirement involving the local community is the infrastructure recommendation provision that is at issue in the Hi-Q application.
A change to LEPP's local government provision may occur, however, if the ODA follows recommendations recently passed by the agency's Concentrated Animal Feeding Facilities Advisory Committee. The committee recently approved a proposal in March that recommends giving local government officials a 75-day limit to file their responses to a permit application. The application could proceed through the approval process if the local governments don't respond within the 75-day window. The 75-day recommendation by the committee would require legislative action by the Ohio General Assembly.
Program revisions include new rules to address manure impacts on Ohio lakes
The Ohio Department of Natural Resources (ODNR) will hold a public hearing next week for its proposed revisions to the Ohio Agricultural Pollution Abatement Program, a water quality program that encourages voluntary actions to manage water pollution impacts from agricultural and silvicultural land uses, provides cost-sharing for agricultural pollution prevention, and allows ODNR to take measures against those who do not voluntarily address an agricultural pollution problem. For purposes of the program, "agricultural pollution" is the failure to use appropriate practices in farming or silvicultural operations to abate soil erosion or water quality impacts caused by animal waste or soil sediments. Local Soil and Water Conservation Districts are initially responsible for implementing the program, with final oversight and enforcement authority held by ODNR's Division of Soil and Water Resources.
The rule revisions come partially as a result of the agency's mandatory five-year review of the program. However, several new rules--undoubtedly the most controversial proposals--are in response to the high blue-green algae levels in Grand Lake St. Mary's and other Ohio lakes this past summer. Studies indicate that manure is one of the contributors to the proliferation of the blue-green algae. A plan of action to improve the lake's water quality developed in July by ODNR, the Ohio Department of Health and the Ohio EPA proposed several actions related to manure management, including these new rules for the Agricultural Pollution Abatement Program:
- Declaration of a "watershed in distress." The rule would give the chief of ODNR's Division of Soil and Water Resources, with the approval of the Ohio Soil and Water Conservation Commission, the authority to declare a "watershed in distress" where the watershed has aquatic life and health that 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.
- Pollution minimization in distressed watersheds. The distressed watershed designation requires all owners, operators and persons responsible for land application of manure in the watershed to minimize pollution by following applicable standards, methods or management practices; failure to do so is a program violation, regardless of whether pollution actually results from the failure.
- Land applications of manure in distressed watersheds. After a watershed remains designated "in distress" for more than two years, the rule places restrictions on land applications of manure, including required prior approval from the state for applications between December 15 and March 1, injection or incorporation for manure applied to frozen or snow pack ground before December 15 or after March 1 and limitations on applications during certain types of weather. Additionally, all owners and operators in the distressed area must maintain 120 days of manure storage.
- Nutrient management plans in distressed watersheds. Each owner, operator or person responsible for producing, applying or receiving more than 350 tons or 100,000 gallons of manure annually in a distressed watershed must develop a nutrient management plan as specified by the regulations.
In response to the proposed new rules, the Ohio Farm Bureau has already indicated that, while it supports the general intent to address water quality issues in Grand Lake St. Marys, it is concerned that the distressed watershed provisions are too vague and may exceed ODNR's scope of authority. The legislature originally granted ODNR's authority for the Ohio Agricultural Pollution Abatement Program in Ohio Revised Code Chapter 1511. Interestingly, in the joint plan of state actions for water quality improvement at Grand Lake St. Mary's, the state agencies admitted that they were asking the Ohio General Assembly to support "additional state regulatory authority" by way of approval of the proposed rule revisions by the legislature's Joint Committee on Agency Rule Review (JCARR). Whether this additional authority exceeds the scope of authority originally granted by the Ohio legislature is a question that JCARR will address in its review of the proposed rules.
The remaining proposed revisions to the agricultural pollution abatement program regulations intend to address a need for more rapid handling of pollution situations as well as problems identified through a program review conducted last year by an appointed advisory committee. Other revisions in the rules package include:
- The inclusion of manure applicators as parties responsible for land application of manure, in addition to the current rule's allocation of responsibility for the owners or operators of animal feeding operations.
- A number of changes designed to create more flexibility and efficiency in program oversight and administration by allowing earlier involvement of the Division of Soil and Water Resources.
- An increase of cost share monies to a maximum of $30,000 and expansion of the types of practices eligible for cost-sharing;
- A change throughout the rules from "animal waste" to "manure," which includes animal excretia, discarded products, process waste water, process generated waste water, waste feed, silage drainage, and compost products from mortality composting, on farm biodigerster operations or animal excretia composting.
- Required facility modifications where seepage of animal manure occurs.
- Changing "concentrated animal feeding operations" to "animal feeding operations" throughout the rule and clarifying that the program does not apply to facilities regulated through the state's Livestock Environmental Permitting Program or NPDES permit program.
The ODNR has posted the rules package and supporting materials on its website. The public hearing for the rules proposal will take place on November 8, 2010.