A claim that the Ohio Department of Agriculture’s (ODA) anhydrous ammonia regulations are unreasonable and fail to protect public health and safety has again been rejected by the courts. A recent decision by Ohio’s Fifth District Court of Appeals concluded that the challenge by Sharon Township’s Board of Trustees in Medina County failed to establish a valid legal claim.
The case raised considerable controversy in Sharon Township, where the owner of South Spring Farms requested ODA approval to install a 12,000 gallon anhydrous ammonia storage tank. Ohio law grants ODA the authority to adopt rules concerning the handling and storage of anhydrous ammonia and other fertilizers and also prohibits any local regulation of fertilizers. ODA created anhydrous regulations in the late 1970s; those regulations require ODA approval of the location and design of a stationary ammonia system.
ODA approved South Spring Farms’ application in 2010 and granted a permit for installation of the tanks. Sharon Township filed a lawsuit against ODA, asking the trial court to grant an injunction prohibiting the ODA from permitting the installation of anhydrous storage tanks “until the ODA established regulations which would reasonably protect the health, safety, and welfare of people and property which can be reasonably foreseen to be exposed to the toxic and deadly effect of an uncontrolled release of this dangerous material, anhydrous ammonia.”
The legal basis for the denial of Sharon Township’s request for an injunction by both the trial and appeals courts concerns the issue of whether there is a “real and substantial controversy” that necessitates injunctive relief by the court, rather than “an opinion advising what the law would be upon a hypothetical state of facts.” The Court of Appeals could not find any support for Sharon Township’s claim that the ODA regulations are unreasonable or fail to protect public health and safety. Without such support, the court concluded that there was no controversy it could resolve. Granting the township’s request for an injunction would thus amount to “judicial legislation,” said the court.
The case is one that raises questions about the relationships between agriculture and its surrounding communities. Are communities becoming less willing to tolerate agricultural activities, even though Ohio laws are often set up to support and encourage agriculture?
The use of anhydrous ammonia is a routine practice farmers have engaged in for several decades, yet it upset a surprising number of local leaders and residents in this instance. The large size of the tank may have been a factor, as well as the extent of non-farm residents in the area. In addition to the possibility of a leak or spill, concerns raised by the community included proximity to many residents, fear of tampering by methamphetamine producers, an earlier chemical spill by the farm and lack of requirements for fencing. Whether these are real or perceived threats, the fact that they were raised so strongly and taken to the court of appeals gives us cause for concern.
The case is Bd. of Twp. Trustees Sharon Twp. v. Zehringer, 2011-Ohio-6885 (Dec. 28, 2011).
ODA agrees to rescind rule that prohibits "hormone free" claims on dairy products
The Ohio Department of Agriculture (ODA) has agreed to withdraw the controversial dairy labeling rule that restricts the use of "hormone free" language on dairy labels. The agreement by ODA is in settlement of a federal lawsuit initiated against the state of Ohio over three years ago by the International Dairy Foods Association and Organic Trade Association. A federal appeals court ruled in favor of the associations in 2010, agreeing that Ohio's dairy product labeling rule violated milk producers' constitutional rights to conduct truthful commercial speech. After the win on appeal, the associations filed a claim seeking reimbursement from Ohio for the $1.3 million in legal fees required to challenge the rule. Apparently, the associations have agreed to drop that claim in exchange for Ohio's withdrawal of the rule. The ODA has not yet issued a formal statement on the settlement or officially rescinded the rule.
A retraction of the rule by ODA will impact labeling practices in the dairy industry in several ways. The current rule prohibits milk composition claims such as “No Hormones”, “Hormone Free”, “rbST Free”, “rbGH Free” or “No Artificial Hormones" but allows statements that the dairy product derives from cows who did not receive artificial hormones. Absent the rule, companies will be able to make "hormone free" milk composition claims without the risk of an ODA enforcement action. Also, a company will not be required to state that the FDA has not confirmed a difference between "hormone free" products and other dairy products where the company permissibly states that the milk is from cows not receiving artificial hormones. Additionally, withdrawing the rule removes provisions requiring those who claim that a dairy product is "hormone free" to be prepared to verify the claim via producer signed affidavits, farm weight tickets and plant audit trails.
Do you need a CDL for your farm operations?
Like many other areas of law, driver’s license regulations for agricultural situations have unique provisions and exemptions. Recent rumors had the agricultural community concerned about possible changes in the Commercial Driver’s License (CDL) requirements for agriculture. While the U.S. Department of Transportation has clarified that CDL provisions for agriculture will not change at the federal level, the rumors had many asking questions about when an agricultural operator needs a CDL.
Federal Authority over CDLs
The Federal Commercial Motor Vehicle Safety Act (FCMVSA) addresses driver’s licensing for commercial vehicle operators, and aims to protect public safety by establishing qualifications for those who drive large trucks and buses on public roads and highways. The federal law delegates the actual authority over CDL licensing to each individual state, but first establishes minimum federal standards that a state must meet when issuing CDLs. In regards to agriculture, the law specifically allows a state to create CDL exemptions for “operators of a farm vehicle which is controlled and operated by a farmer, including operation by employees or family members.” The recent statement from the federal government about CDLs clarified that there would not be any new minimum federal standards for agriculture or any changes to the federal delegation of agricultural exemption authority to the states. Therefore, an agricultural operator must look to the CDL laws of the state in which he or she operates.
Ohio’s CDL Exemption for Agriculture
Ohio law establishes a “farm truck operator exemption” in Ohio Revised Code 4506.03(B)(1). This provision states that Ohio’s CDL requirements do not apply “to any qualified person when engaged in the operation of a farm truck.” The farm truck exemption is designed to address the situation where a farmer trucks goods back and forth from the farm, but not for long distances. Important to the exemption is the definition of “farm truck,” which is:
A truck controlled and operated by a farmer that is used to transport:
- Products of the farm either to or from the farm, for a distance of not more than 150 miles, including livestock, livestock products, poultry, poultry products and floricultural and horticultural products,
- Supplies to the farm, from a distance of not more than 150 miles, including tile, fence, and every other thing or commodity used in agricultural, floricultural,horticultural, livestock, and poultry production, and livestock, poultry, and other animals and things used for breeding, feeding, or other purposes connected with the operation of the farm,
- As long as the truck is not used in the operation of a motor transportation company or a private motor carrier. ORC 4506.01(O).
Note that the farm truck exemption refers specifically to a truck controlled and operated by a “farmer.” The law does not provide a definition for “farmer,” however. This raises questions about who the law covers: are farm family members and employees included? To date, there are not any published court opinions that lend clarity to the issue. Farm operators should be aware that a citation could be possible if an officer believes a truck operator is not a “farmer.”
The Restricted CDL for Farm-Related Service Industries
Ohio law also provides a restricted CDL for operators who service the agricultural sector on a seasonal basis. The restricted CDL applies to eligible “seasonal” operators, which includes farm retail outlets and suppliers, agri-chemical businesses, custom harvesters and livestock feeders. The law waives the requirements for CDL written and skills tests for eligible seasonal operators. The seasonal operator my operate a Class B or Class C vehicle, subject to restrictions: travel must be within 150 miles of the place of business, the seasonal period must be no more than 180 days in any twelve month period, and hazardous material transport is limited to 1,000 gallons of diesel fuel; 3,000 gallons for liquid fertilizer; and solid fertilizer only if without accompanying organic substances. To receive a restricted CDL for farm-related service, the operator must file an application and meet eligibility requirements, such as one year of driving experience, no motor vehicle violations or offenses and no license suspensions, revocations or cancellations. ORC 4506.24.
Ohio’s CDL Laws and Other States
Ohio’s CDL provisions for agriculture are valid only within the State of Ohio. The federal government allows a state to make reciprocal agreements for CDL licensing with other states, but no such agreements regarding agriculture exists between Ohio and another state. Without a reciprocal agreement on agricultural exemptions, an operator who crosses state lines is engaging in "interstate" travel, which requires a CDL and raises additional federal requirements.
For information on Ohio’s CDL laws, visit the Ohio Department of Public Safety.
The agenda is in place for the fourth annual Ohio Agricultural Law Symposium, a program for attorneys and others working in the agricultural arena. The Symposium takes place on Friday, November 18 at The Ohio State University's Ohio Union and features state and national experts on the most current legal and policy issues facing Ohio agriculture.
Nine topics are packed into the day-long program, including presentations by Ohio Senator Cliff Hite, Washington D.C. agricultural policy consultant Dale Moore and American Farm Bureau attorney Danielle Quist. Ohio attorneys and experts will speak on Livestock Care Standards, agri-environmental law, USDA audits, CAUV, oil and gas development and estate planning. Here is the complete agenda for the day:
Welcome – Peggy Hall, Director, OSU Agricultural & Resource Law Program
Chesapeake TMDL: EPA’s New Framework for Watershed Regulation
Danielle Quist, Senior Counsel for Public Policy, American Farm Bureau Federation, Washington, D.C.
Nutrient-Enriched Lakes, Livestock Emissions, and Other Hot Environmental Topics for Ohio Agriculture
Jack Van Kley, Van Kley and Walker LLC, Columbus
Enforcing Ohio’s New Livestock Care Standards
James Patterson, Assistant Attorney General, State of Ohio
The Office of Inspector General Audit: Preventing and Detecting Waste, Fraud and Abuse
Diana Blust, Senior Auditor, U.S. Department of Agriculture, Office of the Inspector General
Current Issues in Current Agricultural Use Valuation
Larry Gearhardt, Ohio Farm Bureau Federation, Columbus
Representing Landowners in Oil and Gas Leases and Mineral Disputes (Concurrent 1)
Richard A. Yoss, Yoss Law Office, Woodsfield
Estate Planning for Farmers in an Era of New Laws and New Wealth (Concurrent 2)
Beatrice Wolper, Emens & Wolper Law Firm, Columbus Paul L. Wright, Wright Law Co., LPA, Dublin
Fighting for Agriculture in Washington: The Farm Bill and other Farm Policy Issues
Dale W. Moore, Vice President, Policy Directions, Inc, Washington, D.C.
Legislative Outlook for Ohio Agriculture
Senator Cliff Hite, Chair, Ohio Senate Agriculture, Environment and Natural Resources Committee
The Ohio Agricultural Law Symposium is a partnership project of OSU's Agricultural & Resource Law Program and the Ohio State Bar Association and its Agricultural Law Committee. The goal of the Symposium is to provide a forum for education, discussion and interaction on legal issues for Ohio agriculture. As in the past, OSU offers scholarships for law students to attend the Symposium at no cost through the support of the Paul L. Wright Agricultural Law endowment fund.
The Symposium brochure provides additional information about the program.
With shale development hitting Ohio at a rapid pace, OSU's Agricultural & Resource Law Program will host our first Ohio Oil and Gas Law Symposium on Thursday, June 16, 2011. "The New Ohio Oil and Gas Boom: Drilling into Legal Issues," will take place at the Longaberger Golf Club near Newark, Ohio. The day-long educational program for attorneys will address many of the initial legal issues related to development of Ohio's Marcellus and Utica shale resources, including these topics and speakers:
- "An Overview of the Shale Resource" with Tom Murphy of Penn State's Marcellus Center for Outreach and Research.
- "Mandatory Pooling and Current Regulatory Issues," by Sandra Ramos, Legal Counself for Ohio Department of Natural Resources Division of Mineral Resources Management
- "Dealing with Dormant Minerals and Old Leases," by Eric Johnson of Johnson and Johnson Law Firm, Canfield
- "Ohio Oil and Gas Leases: A Primer," with Gregory Russell of Vorys, Sater, Seymour and Pease, LLP, Columbus
- Landowner Leasing Issues Panel Discussion
- "Representing Landowner Groups in Oil and Gas Leasing," with Chris Finney of Logee, Hostetler, Stutzman and Lehman, LLC, Wooster
For more information on our Ohio Oil and Gas Law Symposium, visit https://www.regonline.com/OilandGasLaw.