Ohio Livestock Environmental Permit Program
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.