Recent Blog Posts
by Ellen Essman, Sr. Research Assoc., Agricultural & Resource Law Program
The saga of Ohio’s designation of impaired waters continues. Readers will recall previous posts on the Ag Law Blog detailing lawsuits against the U.S. EPA for failing to approve or disapprove Ohio’s 2016 list of impaired waters within the time limit required by law. Those posts are available here and here. Eventually, on May 19, 2017, the EPA accepted the Ohio EPA’s list of impaired waters, which did not include the open waters of Lake Erie’s western basin. Our blog post regarding that decision is here. That, however, was not the end of the story. In a letter to the Ohio EPA dated January 12, 2018, the U.S. EPA withdrew its May 2017 approval of Ohio's impaired waters list and asked Ohio to compile additional data for a new evaluation of Lake Erie.
What’s the issue?
Why has Ohio’s 2016 list of impaired waters been so hotly contested? Understanding this situation requires a little bit of background information. An EPA regulation created under the federal Clean Water Act (CWA) requires that states submit a list of impaired waters every two years. "Impaired waters" are those water bodies that do not or are not expected to meet the water quality standards for their intended uses. Designating a water body as impaired triggers a review of pollution sources, determinations of Total Maximum Daily Loads (TMDLs) of pollutants, and an action plan for meeting TMDLs.
After a state submits its impaired waters list, the EPA must approve or disapprove the designations within 30 days. In the case of Ohio’s 2016 list, Ohio did not include the open waters of the western basin of Lake Erie on its impaired waters list and the EPA delayed acting on the list until far beyond the 30 day mark. On the other hand, Michigan listed all of the waters of Lake Erie within its jurisdiction as impaired, which included the open waters in the western basin of Lake Erie. By approving both Ohio’s list and Michigan’s list, the EPA was agreeing to two different designations for what could essential be the same water in the same area of Lake Erie. As a result of this discrepancy, environmental groups brought a federal lawsuit against the EPA.
EPA withdraws approval
The EPA’s recent letter to Ohio could possibly have been prompted by the lawsuit mentioned above. In its letter, the EPA withdrew its May 2017 approval...”specifically with respect to the open waters of Lake Erie.” The agency states that Ohio’s 2016 submission failed to assemble and evaluate existing data and information related to nutrients in the open waters of Lake Erie, and directs Ohio to reevaluate available data and information by April 9, 2018.
Going forward
The controversy over Ohio’s 2016 designation of impaired waters has gone on so long that it's now time for a new list. Ohio must submit a 2018 designation of impaired waters to the EPA by April 1, 2018. It is very likely that the withdrawal of approval for the 2016 list will affect which waters Ohio designates as impaired on its 2018 list, particularly in regards to the western basin of Lake Erie.
The withdrawal of approval could also affect the outcome of the current lawsuit against the EPA. The environmental groups plan to persist with the lawsuit even in light of the EPA’s withdrawal. It will be interesting to see who the District Court sides with, given the fact that the EPA has now taken steps to resolve the discrepancy at the heart of the lawsuit.
The letter from the U.S. EPA to the Ohio EPA is available here.
Tags: Lake Erie, western basin, impaired waters, EPA, nutrients
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Written by Ellen Essman, Sr. Research Assoc., Agricultural & Resource Law Program
We often receive questions about the status of industrial hemp as an agricultural crop in Ohio. Historically, growing industrial hemp has been controversial in the United States because of its close relationship to the marijuana plant—both are members of the same species. Plants used for industrial hemp, however, have a much lower amount of tetrahydrocannabinol (THC) than marijuana and do not have the intoxicating qualities of marijuana plants. Uses for industrial hemp are numerous; ranging from fabrics, to car parts, to bedding for animals. Because of potential usefulness, Congress authorized the growing of industrial hemp in individual states for “purposes of research” in the 2014 Farm Bill.
The 2014 Farm Bill and industrial hemp
The 2014 Farm Bill included a section codified at 7 U.S.C. § 5940 that allows industrial hemp to be grown under certain circumstances. Specifically, industrial hemp can be grown in a state if:
- It is grown for research purposes;
- The research is conducted under an agricultural pilot program or other agricultural or academic research; and
- State law permits the growth of industrial hemp.
The federal law only permits hemp to be grown, cultivated, studied, and marketed under the guidance of institutions of higher education located in the state or the state department of agriculture. Furthermore, the state must certify and register the sites permitted to grow industrial hemp because any substance containing THC is a Schedule I controlled substance under 21 U.S.C. § 812 (c). This means that without a license issued by a state that allows industrial hemp to be grown for research, someone in possession of the plant would be violating federal drug law.
It is also important to note that under the federal law, “industrial hemp” is defined as the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a THC concentration of not more than 0.3 percent on a dry weight basis. Any concentration over that amount is not legal. Even those plants with a THC concentration less than or equal to 0.3 percent are illegal unless the grower has a state license.
State action on industrial hemp research
Since the passage of the 2014 Farm Bill, 26 states have implemented legislation allowing industrial hemp research or pilot programs. Ohio is not one of these states, but all of the states bordering Ohio have passed laws allowing industrial hemp research. The National Conference of State Legislatures provides a compilation of the state laws here.
Kentucky is an example of a state that is carrying out an industrial hemp pilot program. The program, codified in the Kentucky Revised Statutes §§ 260.850-260.869, allows universities, the state department of agriculture, and those who hold a license from the department of agriculture “to study methods of cultivating, processing, or marketing industrial hemp.” In order to obtain a license, a person must give the Kentucky Department of Agriculture both the legal description and the GPS coordinates of the area where they will grow industrial hemp. Furthermore, applicants for licenses must agree in writing to allow the State to enter the premises for inspection, and receive a yearly background check. Any convicted felon or person with a “drug-related misdemeanor” is barred from becoming licensed.
By implementing this industrial hemp program under state law, Kentucky has stated that it intends to be at the “forefront” of the industry. The state hopes to be in a position to profit from industrial hemp if and when the federal government removes the restrictions on growing and selling industrial hemp. Information from the Kentucky Department of Agriculture is here and here.
Looking forward
Will the U.S. soon allow hemp to be legally grown as a crop? A bill introduced in the U.S. House of Representatives last July, H.R. 3530, calls for industrial hemp to be removed from the federal definition of marijuana, which would in turn remove it from the list of illegal controlled substances. A quick search on Congress’ website reveals that similar bills have been introduced many times in the past but have not garnered sufficient support. The possibility that the current proposal will gain enough traction to pass is therefore slim. But it is possible that continued research could prove the value of industrial hemp as an agricultural crop, which could eventually lead to less regulation in the future. Given Ohio’s lack of legislative interest in allowing industrial hemp research, Ohio farmers may be at a disadvantage if that day arrives.
For more information
Our colleague Harrison Pittman, Director of the National Agricultural Law Center, presented a webinar on industrial hemp and it's recorded here. A Congressional Research Service report on "Hemp as an Agricultural Commodity" is available here. A recent article on hemp by Farm and Dairy is available here.
The Ohio House of Representatives unanimously passed a bill today that should make it easier to plug unused oil and gas wells in Ohio. The legislation also proposes a significant increase in the amount of funds available for doing so, from 14% to 45% of the state’s Oil and Gas Well Fund.
Under the proposed law, a landowner would be able to report an idle and orphaned well to the Chief of the Division of Oil and Gas Resources, who must inspect the well within 30 days and classify the well as distressed high priority, moderate medium priority or maintenance low priority for purposes of sealing the well or restoring the land surface at the well site. The legislation also lightens several procedures the Chief currently must follow before plugging a well, such as determining ownership and legal interests in the well, the oil and gas lease related to the well, and any equipment at the well. The Chief would not be required to search beyond 40 years to determine ownership and legal interests. Several procedures regarding the contracts entered into for restoration or plugging of a well would also change.
House Bill 225, proposed by Rep. Andy Thompson (R-Marietta) now goes to the Ohio Senate for consideration. Read more about the bill here.
Tags: Orphan wells, Oil and Gas Well Fund; Plugging Oil and Gas Wells
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Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program
A few bills related to food preparation and dining in the great outdoors are on the move in the Ohio General Assembly.
One of the bills, Senate Bill 233, would allow those who produce cottage foods to do so in a firebrick oven on a patio connected to the producer’s residence. According to Ohio law, cottage foods are non-hazardous and are produced in a person’s home. Cottage foods can include, but are not necessarily limited to: bakery products, jams, jellies, candy, and fruit butter. If passed, SB 233 would change the current law, which only allows cottage foods to be prepared in an oven or on a stove inside the cottage food producer’s residence. SB 233 would allow producers to use both an inside oven and an outside firebrick oven. The bill is currently being debated in the Senate Health, Human Services & Medicaid Committee.
Two identical bills concerning dogs on restaurant patios are working their way through the two houses of the General Assembly—House Bill 263 and SB 182. The bills would prohibit state agencies and local boards of health from adopting rules banning dogs “in an outdoor dining area of a retail food establishment or food service operation.” Even though the government would not be able to ban dogs in those areas, the bills would allow individual restaurants to decide to keep dogs out of their outdoor areas, with the exception of service dogs. HB 263 is being considered in the House Economic Development, Commerce & Labor Committee. SB 182 is currently being discussed in the Senate Health, Human Services & Medicaid Committee.
Will cottage food producers be able to make tasty treats in firebrick ovens? Will your canine companion generally be allowed to accompany you on restaurant patios throughout Ohio? Stay tuned to the Ag Law Blog for any updates on these bills.
Decisions announced today by the Ohio Supreme Court will allow landowners to challenge Current Agricultural Use Valuation (CAUV) land values established by Ohio’s tax commissioner by appealing the values to the Board of Tax Appeals.
Twin rulings in cases filed by a group of owners of woodland enrolled in CAUV, Adams v. Testa, clarify that when the tax commissioner develops tables that propose CAUV values for different types of farmland, holds a public hearing on the values and adopts the final values by journal entry, the tax commissioner’s actions constitute a “final determination” that a landowner may immediately appeal to the Board of Tax Appeals. The Board of Tax Appeals had argued that the adoption of values is not a final determination and therefore is not one that a landowner may appeal to the Board.
The tax commissioner forwards the CAUV tables to the county auditors, who must use the values for a three year period. An inability to appeal the values when established by the tax commissioner would mean that a landowner must wait until individual CAUV tax values are calculated by the county auditor, who relies upon the tax commissioner’s values to calculate the county values. As a result of today’s decision, landowners may appeal the values as soon as the tax commissioner releases them.
The landowners also claimed that the process and rules for establishing the CAUV values are unreasonable and not legal. However, the Court rejected those claims.
For an excellent summary of the Adams v. Testa cases by Court News Ohio, follow this link.
Tags: current agricultural use valuation, cauv, tax, property tax, woodland tax
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The first hearing for a bill that would limit legal liability for Ohio beekeepers took place this week before the House Economic Development, Commerce and Labor Committee. The bill’s sponsor, Rep. Dick Stein (R-Norwalk), offered several reasons for the proposal, including that beekeeping has recently grown in popularity along with increased demand for honey products, bees play an important role in pollinating plants and contribute to the agricultural economy, and beekeepers have incurred expenses defending themselves against lawsuits that are typically unsuccessful.
House Bill 392 aims to provide immunity from liability for any personal injury or property damage that occurs in connection with keeping and maintaining bees, bee equipment, queen breeding equipment, apiaries, and appliances, as long as the beekeeper does all of the following:
- Registers the apiary with the Ohio Department of Agriculture, as is currently required by Ohio law;
- Operates according to Ohio Revised Code Chapter 909, which contains provisions for apiaries;
- Implements and complies with the best management practices for beekeeping as established by the Ohio State Beekeepers Association; and
- Complies with local zoning ordinance provisions for apiaries. Note that zoning ordinances for apiaries would likely exist only in incorporated areas, as Ohio’s “agricultural exemption from zoning” prohibits townships and counties from using zoning to regulate agricultural activities like beekeeping in most situations.
A beekeeper would not have immunity from liability resulting from intentional tortious conduct or gross negligence, however.
The second hearing for the bill will take place on December 5, 2017. Information about the proposal is available here.
Tags: beekeeping immunity, apiaries, apiary immunity, bees
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Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program
Veal and dairy producers in Ohio will be subject to new livestock care standards in 2018. Producers were first made aware of these changes when the Ohio Livestock Care Standards for veal, dairy and other species were originally adopted in September of 2011 after the passage of State Issue 2, a constitutional amendment that required Ohio to establish standards for the care of livestock. Since the new care standards make significant changes to the management of veal and dairy, producers were given a little more than six years to transition their facilities and practices accordingly. The new standards will be effective on January 1, 2018. Producers with veal calves and dairy cattle are encouraged to understand the regulations and make the required changes to their operations by January 1.
Changes to veal regulations
The regulations for veal address housing for veal calves weighing 750 pounds or less. Currently, veal calves may be tethered or non-tethered in stalls of a minimum of 2 feet x 5.5 feet. Next year, the following housing standards will apply:
- Tethering will be permitted only to prevent naval and cross sucking and as restraint for examinations, treatments and transit, if:
- The tether is long enough to allow the veal calf to stand, groom, eat, lie down comfortably and rest in a natural posture;
- The tether’s length and collar size is checked every other week and adjusted as necessary.
- Individual pens must allow for quality air circulation, provide opportunity for socialization, allow calves to stand without impediment, provide for normal resting postures, grooming, eating and lying down, and must be large enough to allow calves to turn around.
- By the time they are ten weeks old, veal calves must be housed in group pens. The regulations currently require that group pens meet the above standards required for individual pens and also must contain at least two calves with a minimum area of 14 square feet per calf, must separate calves of substantially different sizes and that calves must be monitored daily for naval and cross sucking and be moved to individual pens or provided other intervention for naval or cross sucking.
The veal regulations, including both the current rules and the rules that will become effective January 1, are available here.
Changes to dairy cattle regulations
There is only one change to the dairy care standards. As of January 1, docking the tails of dairy cattle will only be permissible if:
- Performed by a licensed veterinarian; and
- Determined to be medically necessary.
The dairy cattle standards, including the current tail docking rule and the rule that becomes effective January 1, are here.
More information is also available in this press release recently published by the Ohio Department of Agriculture and on the website for Ohio’s Livestock Care Standards, which is here.
Tags: Ohio livestock care standards, Farm animal welfare, veal, dairy
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UPDATE 2: The federal spending bill signed into law on March 23, 2018 contained a provision stating that air emissions from animal waste at a farm are not subject to CERCLA reporting requirements, nor are emissions from the application, handling or storage of registered pesticides.
UPDATE: The court has delayed these new reporting requirements for a second time-- the new date is May 1, 2018. Farm operations of certain sizes are now required to report air emissions of certain hazardous substances that exceed a reportable quantity under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act. This new requirement affects livestock farmers with larger numbers of animals, as they may exceed the reportable quantity for ammonia emissions. We've authored a new Law Bulletin on Continuous Release Reporting of Air Emissions for Livestock Farms to help farms determine whether they must report air emissions and if so, how to complete the reporting process. The new bulletin is available here.
Read more about the new CERCLA air emissions reporting mandate in our earlier post.
Longstanding complaints against Rover Pipeline's environmental practices while constructing an interstate natural gas pipeline across Ohio recently culminated in a lawsuit against the company. Attorney General Mike Dewine filed the suit in Stark County on behalf of the Ohio EPA, alleging that Rover illegally discharged drilling fluids, sediment-laden storm water and several million gallons of drilling fluids into Ohio waters, including wetlands in Stark County. The state seeks a court order requiring Rover to apply for state permits, comply with environmental plans approved and ordered by the Ohio EPA, and pay civil penalties of $10,000 per day for each violation.
To read more about the state's claims visit this post by our partner, the National Agricultural Law Center.
Written by Peggy Hall and Ellen Essman
UPDATE 4: Congress has clarified in new legislation enacted on March 23, 2018, that emissions from animal waste on farms are not subject to CERCLA reporting.
UPDATE 3: The U.S. EPA has requested and received an additional reporting delay until May 1, 2018 or after and has advised that the agency will provide a notice of the specific date that farms should begin reporting once the court enters its final order.
UPDATE 2: The court has delayed theese new reporting requirements until January 22, 2018.
UPDATE 1: The EPA and several agricultural groups have requested the court for a delay of the November 15 reporting deadline, but the court has not yet responded to the request. Due to a high call volume, the EPA is now advising that producers should utilize the e-mail option for continuous reporting, rather than calling the NRC line. We explain the reporting requirements in this new Law Bulletin, Continuous Release Reporting of Air Emissions for Livestock Farms.
Beginning November 15, 2017, many livestock, poultry and equine farms must comply with reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 103. The law requires entities to report releases of hazardous substances above a certain threshold that occur within a 24-hour period. Farms have historically been exempt from most reporting under CERCLA, but in the spring of 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the rule that allowed reporting exemptions for farms. As long as there is no further action by the Court to push back the effective date, farmers and operators of operations that house beef, dairy, horses, swine and poultry must begin complying with the reporting requirements on November 15, 2017.
Farmers and operators, especially of sizeable animal operations that are likely to have larger air emissions, need to understand the reporting responsibilities. The Environmental Protection Agency (EPA) has published interim guidance to assist farms with the new compliance obligations. The following summarizes the agency’s guidance.
What substances to report
The EPA specifically names ammonia and hydrogen sulfide as two hazardous substances commonly associated with animal wastes that will require emissions reporting. Each substance has a reportable quantity of 100 pounds. If a farm releases 100 pounds or more of either substance to the air within a 24-hour period, the owner or operator must notify the National Response Center. A complete list of hazardous substances and their corresponding reportable quantities is here.
Note that farmers do not have to report emissions from the application of manure, and fertilizers to crops or the handling, storage and application of pesticides registered under federal law. However, a farmer must report any spills or accidents involving these substances when they exceed the reportable quantity.
How to report
Under CERCLA, farm owners and operators have two compliance options—to report each release or to follow the continuous release reporting process:
- For an individual release that meets or exceeds the reportable quantity for the hazardous substance, an owner or operator must immediately notify the National Response Center (NRC) by phone at 1-800-424-8802.
- Continuous release reporting allows the owner or operator to file an “initial continuous release notification” to the NRC and the EPA Regional Office for releases that will be continuous and stable in quantity and rate. Essentially, this puts the authorities “continuously” on notice that there will be emissions from the operation within a certain estimated range. If the farm has a statistically significant increase such as a change in the number of animals on the farm or a significant change in the release information, the farm must notify the NRC immediately. Otherwise, the farm must file a one year anniversary report with the EPA Regional Office to verify and update the emissions information and must annually review emissions from the farm. Note that a farm must submit its initial continuous release notification starting on November 15, 2017.
No reporting required under EPCRA
The litigation that led to CERCLA reporting also challenged the farm exemption from reporting for the Emergency Planning and Community Right to Know Act (EPCRA). EPRCRA section 304 requires facilities at which a hazardous chemical is produced, used or stored to report releases of reportable quantities from the chemicals. However, EPA explains in a statement issued on October 25, 2017 that the statute excludes substances used in “routine agricultural operations” from the definition of hazardous chemicals. EPCRA doesn’t define “routine agricultural operations,” so EPA states that it interprets the term to include regular and routine operations at farms, animal feeding operations, nurseries, other horticultural operations and aquaculture and a few examples of substances used in routine operations include animal waste stored on a farm and used as fertilizer, paint used for maintaining farm equipment, fuel used to operate machine or heat buildings and chemicals used for growing and breeding fish and plans for aquaculture. As a result of this EPA interpretation, most farms and operations do not have to report emissions under EPCRA. More information on EPA’s interpretation of EPCRA reporting for farms is here.
What should owners and operators of farms with animal wastes do now?
- Review the EPA’s interim guidance on CERCLA and EPCRA Reporting Requirements, available here.
- Determine if the operation may have reportable quantities of air emissions from hazardous substances such as ammonia or hydrogen sulfide. The EPA offers resources to assist farmers in estimating emission quantities, which depend upon the type and number of animals and type of housing and manure storage facilities. These resources are available here.
- A farm that will have reportable emissions that are continuous and stable should file an initial continuous release notification by November 15, 2017. A guide from the EPA for continuous release reporting is here. Make sure to understand future responsibilities under continuous release reporting.
- If not operating under continuous release reporting, immediately notify the National Response Center at National Response Center (NRC) at 1-800-424-8802 for any release of a hazardous substance that meets or exceeds the reportable quantity for that substance in a 24-hour period, other than releases from the normal application or handling of fertilizers or pesticides.
- Learn about conservation measures that can reduce air pollution emissions from agricultural operations in this guide from the EPA.
Note that the EPA is seeking comments and suggestions on the resources the agency is providing or should provide to assist farm owners and operators with meeting the new reporting obligations. Those who wish to comment should do so by November 24, 2017 by sending an e-mail to CERCLA103.guidance@epa.gov.
Tags: CERCLA reporting, EPCRA reporting, livestock, animal waste, EPA, air emissions
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