State Hearing Officer Recommends Denying CAFO Permit Application for Hi-Q
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.