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.
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.