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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.
Board nears completion of standards for farm animal care
The Ohio Livestock Care Standards Board accepted an enormous task nearly a year ago when charged with the responsibility of developing rules for the care and well-being of livestock in Ohio. Since that time, the board has proposed numerous standards on topics ranging from euthanasia to housing. To date, two sets of the board's standards have completed the rulemaking process and are now effective. Several others await either final approval by the board or review by the Ohio legislature's Joint Committee on Agency Rule Review (JCARR). The following summarizes the board's progress.
1. Livestock care standards developed by the board that became effective on January 20, 2011 include:
- Euthanasia. The standard outlines acceptable euthanasia methods for each species of livestock, and provides guidelines for use of each method of euthanasia. See the final regulation in the Ohio Administrative Code, Section 901:12-1.
- Civil penalties. The rule establishes penalties and a notification procedure for violations of the livestock care standards. Violations range from minor--punishable by a penalty of up to $500 for a first offense and $1,000 for subsequent offenses within 60 months of the first--to major--punished by a civil penalty of $1,000 to $5,000 for a first offense, and $5,000 to $10,000 for each subsequent offense within 60 months of the first. A major violation is one that imperils the animal’s life or causes protracted “disfigurement,” “health impairment,” or “loss or impairment of the function of a limb or bodily organ.” See the final rule at OAC Section 901:12-2.
2. Livestock care standards submitted by the board and awaiting final review by JCARR:
General considerations for the care and welfare of livestock. Establishes general management requirements for all livestock, including feed and water, management, health and transportation. Key provisions in this standard:
- Housing, equipment and handling facilities must minimize bruises and injuries.
- Restraints must be minimal.
- Handling devices must be humane. Electric prods are permissible if hand held, battery powered and 50 volts or less, but may not be used on poultry, equine, alpacas, llamas, calves weighing less than 200 pounds, pigs weighing less than 35 pounds, on sensitive areas or on non-ambulatory disabled animals.
- Malicious or reckless throwing, dragging or dropping of an animal is prohibited, but minimal dragging of a disabled animal may occur in certain circumstances.
- Picking up or carrying an animal by its ears or tail is prohibited, as is pulling an animal's legs in positions or directions that cause distress to the animal.
- Animals must be monitored regularly and steps must be taken when evidence of disease, injury, or parasites is present.
- A “Veterinary-Client-Patient-Relationship” is necessary to obtain and administer prescriptive drugs to livestock.
- Health and medical practices must be performed humanely.
- Disabled and Distressed Livestock. The proposed rule sets forth standards of care for distressed and disabled livestock, including disabled "downer" livestock, which the rule refers to as "non-ambulatory disabled" animals. Action must be taken to address an animal's situation, either by caring for, monitoring, treating, transporting, slaughtering or euthanizing the animal. The rule prohibits loading a disabled, non-ambulatory animal for transport to a non-terminal market or collection facility. If a disabled or distressed animal is at a non-terminal market or collection facility and there is no option for immediate sale, standards of care must be provided or the animal must be released or euthanized. The owner must keep records of treatments, medications and withdrawal times.
3. Standards in draft form and currently open to public comment include:
Standards for Individual Species. In addition to the general consideration standards for all livestock, the board has proposed individual standards for goats, sheep, turkeys, poultry, swine, beef, dairy, veal, equine, alpacas and llamas. The individual standards address unique needs and issues regarding feed and water, management and transportation for each specie. Key issues addressed in the individual standards include:
- Providing newborns with colustrum or colustrum replacement within the first 24 hours.
Standards for pen sizes, housing materials, lighting, air circulation, breeding and birthing pens and outdoor pens. Of interest in these standards:
- Restrictions on the use of gestation crates for swine after December 31, 2025.
- For new farms not in existence on the rule's effective date, prohibition of conventional poultry battery cages that do not provide areas for nesting, scratching, perching or bathing.
- Management of groups of animals.
Standards for tethering, dehorning, castrating, shearing, induced molting, tail docking and treatment of tusks, beaks, teeth, hooves and toes. Of particular interest in these standards:
- Restrictions on tethering and requirements for group housing of veal calves after December 31, 2017.
- Beginning January 1, 2018, tail docking of dairy cattle may occur only if medically necessary and performed by a licensed veterinarian.
To review the standards and the status of the work by the Ohio Livestock Care Standards Board, visit this website.