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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.

The Ohio Livestock Care Standards Board has proposed civil penalty provisions for violations of the livestock care standards currently under development by the Board.  The proposal addresses notification procedures for the Ohio Department of Agriculture (ODA), the agency responsible for enforcing the standards, and establishes two types of violations of the livestock care standards:  minor violations and major violations.  

A minor violation is one which violates the standards due to neglect or unintentional acts of substandard practices, but which does not place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function.  For a minor violation, the ODA may fine the offender up to $500 for a first offense and up to $1,000 for a subsequent offense committed within 60 days of a previous offense. 

A major violation is one which does place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function, or a violation that results in unjustifiable infliction of pain due to reckless or intentional acts.   The ODA may issue a penalty between $1,000 and $5,000 for a first major violation and between $5,000 and $10,000 for repeat violations committed within 60 days of a prior offense.    For major violations, the department may assist with the provision of care services for the animals and may assess the violator for the costs of providing proper care to the animals.

For both minor and major violations, the department may also seek recovery costs for investigations that result in penalties, including salary costs for employees directly involved in the investigation.  The rule also states that a violation affecting more than one animal may be considered one offense of the standards.

The Director of the Ohio Department of Agriculture has posted the proposed civil penalty provisions for public comment on ODA’s website.  The comment period runs until November 2.

Proposed rule addresses standards for farm animal euthanasia

The Ohio Livestock Care Standards Board has developed its first set of proposed standards regarding farm animal welfare, pursuant to the constitutional amendment passed last year by Ohio voters as Issue 2 (see our earlier posts on Issue 2).  The Livestock Care Standards Board unanimously approved standards regarding euthanasia of farm animals on October 5, 2010.   The ODA will now carry the Board's proposed standards through the administrative rulemaking process.

The proposed standards define acceptable methods of euthanasia, which includes inhalant agents, injectable agents, captive bolt guns, blunt force, gunshot, cervical dislocation, decapitation, electrocution, foam hypoxia, maceration and exsanguination.  The proposal establishes different acceptable methods and guidelines for different species, which includes equine, poultry, swine, cattle, goats, sheep, alpaca and llamas.  Provisions also address general considerations for performing euthansia, such as euthanization of animals unlikely to recover from illness or injury, determination of death, unsuccessful euthanasia, disposal of animals and mass euthanasia.  The rule references a civil penalty provision for violations, but the actual civil penalty provision is still under development by the Board.

Interesting to note is how the proposed euthanasia rule relates to the animal welfare agreement entered into last June by the State of Ohio, Humane Society of the United States, Ohio Farm Bureau and several other agricultural organizations.  Regarding euthanasia, the animal welfare agreement states:

"Recommendations will be made to The Ohio Livestock Care Standards Board (OLCSB) to take action on issues related to downer cattle and humane euthanasia using language consistent with the proposed ballot initiative."

The proposed ballot initiative referred to in the animal welfare agreement is the HSUS-led initiative that could have been on the upcoming November ballot, but was pulled as part of HSUS's compromise in the animal welfare agreement.  The ballot initiative proposed amending the Ohio Constitution to include this language on euthanasia:

"Require a farm owner or operator to  ensure that all on-farm killing of cows or pigs be performed in a humane manner using methods explicitly deemed “Acceptable” by the American Veterinary Medical  Association.  This standard shall also include a prohibition on strangulation of cows and pigs as a form of euthanasia."

Note that the animal welfare agreement does not require the adoption of the ballot initiative language in the euthanasia standards; it states only that "recommendations will be made" to the Board to take action using language consistent with the proposed ballot language.  A review of the record available on the Board's website does not indicate whether any party to the animal welfare agreement made such recommendations to the Board.  The Board had already begun working on the euthanasia standards prior to the announcement of the animal welfare agreement in June.  A review of the Board's proposal, however, indicates that the euthanasia standards do not precisely duplicate the HSUS's proposed ballot language.  The standards don't include a specific prohibition against strangulation of cows and pigs.  Instead, the standards do not list strangulation as an acceptable method of euthanasia.  Nor do the standards specifically reference the American Veterinary Medical Association (AVMA) acceptable standards; but many of the Board's acceptable standards are similar to AVMA acceptable standards.  Whether or not recommendations were made to the Board as promised in the animal welfare agreement, the Board's proposed euthanasia standards do appear to be "consistent with" the ballot initiative language on euthanasia.

ODA announced the Board's proposed euthanasia standards today and will accept comments on the standards until October 20, 2010.  Following review of comments, ODA will submit the package to the joint legislative committee that oversees the administrative rulemaking process.  To view the proposed euthanasia standards, visit the ODA website, here.

Court of Appeals Strikes Down Portions of Ohio's Rule on "rbST-free" Labeling

The federal Court of Appeals for the Sixth Circuit has ruled in International Dairy Foods Assoc. v. Boggs, a controversial case long anticipated by Ohio's agricultural interests.  At the center of the controversy is Ohio's dairy labeling rule, adopted  by the Ohio Department of Agriculture in 2008.  Prior to the rule, many dairy producers who did not use the genetically engineered hormone called recombinant bovine somatotropin (rbST) included language on their product labels that indicated the product as "rbST free" or "from cows not treated with rbST."  Many others in the agricultural and dairy industries objected to such language, claiming that it was false and misleading and suggested that  "rbST free" dairy products were superior to others.  In response to such concerns, Governor Strickland directed the ODA to "define what constitutes false and misleading labels on milk and milk products" and to require dairy producers claiming that they do not use rbST to submit supporting documentation and create labels containing representations consistent with the Food and Drug Administration’s findings that there is no significant difference between milk from rbST-treated and untreated cows. 

The ODA rule, adopted  amidst much controversy that divided Ohio's agricultural interests, states that:

(A) Pursuant to sections 917.05 and 3715.60 of the Revised Code, dairy products will be deemed to be misbranded if they contain a statement which is false or misleading.

(B) A dairy label which contains a production claim that “this milk is from cows not supplemented with rbST” (or a substantially equivalent claim) may be considered misleading on the basis of such language, unless:

(1) The labeling entity has verified that the claim is accurate, and proper documents, including, but not limited to, producer signed affidavits, farm weight tickets and plant audit trails, to support the claim, are made readily available to ODA for inspection; and

(2) The label contains, in the same label panel, in exactly the same font, style, case, and color and at least half the size (but no smaller than seven point font) as the foregoing representation, the following contiguous additional statement (or a substantially equivalent statement): “The FDA has determined that no significant difference has been shown between milk derived from rbST-supplemented and non-rbST-supplemented cows.”

(C) Making claims regarding the composition of milk with respect to hormones, such as “No Hormones”, “Hormone Free”, “rbST Free”, “rbGH Free”, “No Artificial Hormones” and “bST Free”, is false and misleading. ODA will not permit such statements on any dairy product labels. 

(D) Statements may be considered to be false or misleading if they indicate the absence of a compound not permitted by the United States [F]ood and [D]rug [A]dministration to be present in any dairy product, including, but not limited to antibiotics or pesticides. Except as otherwise provided in this rule, accurate production claims will not be deemed false or misleading.

Ohio Admin. Code § 901:11-8-01.

The International Dairy Foods Association (IDFA) and Organic Trade Association (OTA) both challenged Ohio's rule, claiming among other things that the rule is unconstitutional for violating their First Amendment rights to free speech and for violating the Commerce Clause.  On all but one claim at the trial level, the federal district court granted summary judgment in favor of the State and denied the request for injunctive relief; IDFA and OTA appealed the decision to the Sixth Circuit Court of Appeals.

In the appellate court's opinion issued on September 30, 2010, the court addressed three issues:  whether the rule's ban on any dairy composition claim violates the First Amendment;  whether the rule's disclosure requirement for production claims violates the First Amendment, and whether the rule violates the Consitition's Commerce Clause.  The court ruled as follows on each issue:

The rule's ban on "composition" claims such as "rbST free" and "hormone free."  Relying on the lack of scientific tests that can ascertain whether rbST exists in milk from either treated or non-treated cows, the court determined that a compositional claim such as "rbST free" is not inherently misleading since it "at best informs consumers of a meaningful distinction between conventional and other types of milk and at worst potentially misleads them into believing that a compositionally distinct milk adversely affects their health."  The court also concluded that although the State's purpose for the rule--to prevent consumer deception--is substantial, a record of such deception was merely hypothetical and the rule neither directly advanced that purpose nor was narrowly tailored to achieve the purpose.  Of importance to the court was the argument that producers should be permitted to use the "rbST free" language in conjunction with a disclaimer that would clarify that the hormone is definitively not in their milk but has not been detected in conventionally produced milk.  The court agreed that merely requiring producers to use a disclaimer would prevent deception and stated that a State "may not place an absolute prohibition on certain types of potentially misleading information...if the information also may be presented in a way that is not deceptive."  The complete ban on composition claims thus violated IDFA and OTA's First Amendment rights to conduct truthful commercial speech, held the court.

The rule's disclosure requirement for production claims.  The second issue concerned the rule's requirement for producers who state that "this milk is from cows not supplemented with rbST" to also include on the product label, contiguously and in a particular font, that "the FDA has determined that no significant difference has been shown between milk derived from rbST-supplemented and non-rbST supplemented cows."    The federal district court found that this disclosure requirement was "reasonably related" to the rule's purpose of preventing deception.  IDFA and OTA argued that the district court should have used a more stringent standard of review for the disclosure requirement, rather than a review of whether the requirement was "reasonable."  The appeals court disagreed, holding that reasonableness was the appropriate standard of review.  However, while the court held that a disclosure requirement is reasonably related to the purpose of preventing deception, it also determined that the rule's strict requirements for the size, font and location of the disclosure had no rational basis or "demonstrable connection to ensuring that consumers are not misled." Compelling to the court was an argument rejected by the federal district court--that the use of an asterisk on the label that would provide the disclosure elsewhere on the product, rather than the restrictive labeling requirements, would be less burdensome and would effectively inform the consumer.  The court of appeals reversed the federal district court's prohibition on the use of an asterisk in lieu of the restrictive formatting mandates in the disclosure requirement.

The rule's impact on interstate commerce.  IDFA and OTA argued that Ohio's rule created an undue burden on interstate commerce in violation of the Constitution's Commerce Clause.  Legal precedent requires the court to determine first whether the rule has the impermissible effect of controlling commerce outside the state's boundaries and second whether the result of the rule is preferential treatment for in-state economic interests.  If the answers to both are negative, the court may conclude that the rule is not invalid on its face but must then determine whether the rule burdens interstate commerce more than it benefits the State.  The appeals court quickly concluded that the rule was not invalid on its face because it did not mandate conduct outside Ohio, did not impede the free flow of milk products across the country and did not favor Ohio interests over outside interests.  The court proceeded to weigh the burdens and benefits of the rule and recognized the importance of the rule's intended benefits-- consumer protection--while noting that the potential burdens of the rule were diminished by the court's invalidation of the more restrictive provisions in the rule.  Thus, the burdens did not outweigh the benefits and the rule was not in violation of the Commerce Clause, said the court.

The court of appeals remanded the case back to the federal district court for further proceedings.  Barring a request for review of the decision to the U.S. Supreme Court, the outcome of the case will likely yield a formal revision of Ohio's dairy labeling rule.  We can expect to see a rule that does not prohibit the use of "rbST free" and similar language but requires disclosure that rBST has not been detected in conventional milk and allows the less restrictive use of an asterisk to disclose information that the FDA has not detected differences between products from rbST and non-rbST cows.

Read the Court of Appeals opinion in International Dairy Foods Assoc. v. Boggs here.