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Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law

It’s the time of year when farmers clear fields and fence rows of corn stalks, branches and other debris and use a common management practice--piling the debris and burning it in the field.  Because outdoor fires such as this create air emissions and wildfire concerns, Ohio has laws that regulate open burning activities.   Burning certain materials at certain times in certain places may violate the open burning laws and cause a health or safety issue.  It’s important to know when open burning of crop debris and field residue is permissible, and to take precautions to minimize risk and liability.

There are several areas of law in Ohio that address open burning.  The Ohio Environmental Protection Agency (OEPA) oversees regulations on the open burning of materials that may produce harmful air emissions that affect human and environmental health.  Ohio also has laws that regulate open burning to minimize the danger of wildfires; these laws may be enforced by the Ohio Department of Natural Resources (ODNR) Division of Forestry or local law officials.   Additionally, a local government might have local ordinances that regulate open burning.

In regards to crop debris in farm fields, it is typically permissible for a farmer to burn the debris.  However, the law creates duties to conduct the burn responsibly and imposes some conditions on what, where and when to burn.  Violating the laws can lead to criminal charges, fines and civil liability to harmed parties.

What can you burn?

Ohio law allows the burning of “agricultural wastes” under certain conditions.  The definition of agricultural waste includes materials such as crop debris, as well as other materials.   According to Ohio law, agricultural waste includes:

• Waste material generated by crop, horticultural, or livestock production practices, landscape wastes that are generated in agricultural activities and woody debris and plant matter from stream flooding.
• Bags, cartons, structural materials and containers for pesticides, insecticides, fungicides, rodenticides, miticides, nematocides, fumigants, herbicides, seed disinfectants and defoliants, if the manufacturer has identified open burning as a safe disposal procedure.  Farmers may add seed bags and cartons to the burn pile as long as the label states that open burning of the materials is safe.

Agricultural waste does not include:

• Standing or fallen buildings, building materials, food waste, dead animals, materials made from petroleum or containing plastic, rubber, grease or asphalt.   A farmer may not add these materials to the burn pile.
• Debris resulting from the clearing of land for new agricultural, residential, commercial or industrial development—this type of waste is defined as “land clearing waste.”  Open burning of land clearing waste requires prior written notification to Ohio EPA.

Where can you burn?

Several regulations determine acceptable locations for burning crop debris and other agricultural waste:

• Agricultural waste may only be burned on the property where the waste is generated; the waste may not be taken to a different property for burning and a farmer cannot receive and burn waste from another property.
• If the burning is inside a “restricted area,” then prior written notice to Ohio EPA must be provided at least ten days in advance of the burning.  A “restricted area” is an area where there is higher population density.  The law defines a restricted area as:
  • Any area inside city or village limits.
  • Any area within the 1,000-foot zone outside of a city or village with a population of 1,000 to 10,000.
  • Any area within a one-mile zone outside of a city or village with a population of more than 10,000.
  • The fire must occur in a location where it will not obscure visibility for roadways, railroad tracks or air fields.
  • The fire must be more than 1,000 feet from any neighboring building inhabited by people, such as homes, stores, restaurants, schools, etc.

When can you burn?

There are definite times when burning of crop debris and other agricultural waste is not permitted unless certain conditions are met.

• Ohio’s wildfire laws limit open burning in rural areas during the months of March, April, May, October and November, when wildfire risk is highest due to dry vegetative conditions and dry winds.  During these months, open burning in rural areas is completely prohibited between the hours of 6 a.m. and 6 p.m., when volunteer fire departments are not well-staffed.  An exception to this prohibition applies to farmers under the following conditions:
  • Open burning may occur in a plowed field or garden, if the burn pile is at least 200 feet from any woodland, brush land or field containing dry grass or other flammable material.  If a farmer can’t meet this 200 foot buffer zone requirement, the farmer should wait until after 6 p.m. to conduct the burn.
  • Open burning should only occur when atmospheric conditions will readily dissipate any smoke and potential contaminants.  If weather conditions are foggy, rainy or causing air inversions, smoke and contaminants will not readily disperse and the farmer should not burn the materials.
  • Even if all other legal requirements for open burning are met, open burning is not allowed when air pollution warnings, alerts or emergencies are in effect.

What about prescribed burning?

Both the ODNR and Ohio EPA have authority over prescribed burning—intentional burns for horticultural, silvicultural, range or wildlife management practices.  Prescribed burning requires prior written permission from Ohio EPA and--if taking place during March, April, May, October or November--the burn must be conducted by a Certified Prescribed Fire Manager with permission by the Chief of ODNR’s Division of Forestry.  See the Division of Forestry’s website for more information on becoming a Certified Prescribed Fire Manager and requesting permission for prescribed burns.

Prior notice to Ohio EPA

For burns that require advance notice to the Ohio EPA, farmers may use the notification form on the Ohio EPA website at http://www.epa.ohio.gov/dapc/general/openburning.  The form seeks information about what will be burned and when and where the burn will take place; this allows the EPA to ensure that the burn is permissible.

Legal duties for conducting open burning

Ohio law also imposes duties for managing open burns.   Ohio Revised Code 1503.18 establishes a duty to prevent fire escape.   The law requires any person who starts a fire near trees, woodland or brush land to take steps to prevent the fire from escaping.  All leaves, grass, wood and inflammable material surrounding the place must be removed to a safe distance and all other reasonable precautions must be taken to keep the fire under control.   The law also states that a person should extinguish or safely cover an open fire before leaving the area.

Ohio EPA’s regulations impose several other duties for managing burns.  As mentioned above, burning of agricultural waste should take place at least 1,000 feet from any neighbor’s inhabited buildings. The wastes should be stacked and dried to provide the best practicable condition for efficient burning and weather conditions should not prevent dispersion of the smoke and emissions.  If the size of an agricultural waste pile exceeds 20 feet in diameter by 10 feet in height (or 4,000 cubic feet),  the farmer must provide written notification of the burn to the Ohio EPA at least ten days before burning.

Local laws

The above analysis explains Ohio’s laws on open burning; remember that the local government might have a local law that also regulates burning activities.  Check with your local fire department to know whether any local regulations apply to the situation.

What if a farmer violates open burning laws?

Violation of the open burning laws creates several risks for farmers.  Ohio EPA has the authority to issue fines of up to $1,000 per day per offense.  The EPA states that it takes enforcement action against repeat offenders or violations that cause significant harmful emissions.  Otherwise, EPA enforcement officers prefer to issue warnings to first-time offenders and educate on how to conduct open burns that minimize pollution impacts.  EPA enforcement officers regularly patrol their districts, investigate fires they see and investigate complaints from neighbors or others who report burning activities.  According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes” such as tires and plastics, failing to meet the 1,000 foot setback requirement and burning waste from another property.

Conducting open burns that violate Ohio’s wildfire prevention laws can result in third degree misdemeanor charges, which carry penalties of up to $500 and 60 days of jail time per violation.   Any person may report a potential illegal burn that creates wildfire risks to the local law enforcement or Division of Forestry.

Equally and perhaps more important is the risk of civil liability from an open burning incident.  We all know that the “burn police” can’t observe everyone all the time, but civil liability doesn’t require intensive monitoring—it requires harm.  Where an open burn causes harm to people or property, civil liability may arise.  An open burn that reduces roadway visibility and results in an auto accident, escapes the property and harms neighbors or neighboring property or significantly interferes with other owners’ property use could result in a negligence or nuisance lawsuit.  The farmer who violated open burning laws or failed to properly manage the fire could be liable for all harm resulting from the fire.

For more information on Ohio’s open burning laws, visit the websites of the Ohio EPA Division of Air Pollution Control and ODNR Division of Forestry.

Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law

Spring planting season brings increased agricultural traffic on Ohio's rural roads, including the use of All-Purpose Vehicles (APVs), All-Terrain Vehicles (ATVs),  Gators, Mules and other four-wheeled utility vehicles.   Laws on these vehicles have changed in recent years and there is still confusion over the new provisions.  Farmers who plan to use an APV, ATV or utility vehicle on the roadway for farm work  should take a few minutes to review the applicable laws and ensure compliance.    Consider these provisions of Ohio law:

• Licensing and registration.  A license is not required for a "utility vehicle," which is a self-propelled vehicle with a bed designed for transporting materials, such as  a Gator or Mule.  A 2009 law required registration for APVs and ATVs, defined as "self-propelled vehicles designed primarily for cross-country travel"--but the law exempted  APVs and ATVs used for farming.  As long as used primarily for agricultural purposes and the owner qualifies for current agricultural use valuation (CAUV), the APV or ATV does not require registration or a license.  If stopped by law enforcement for failure to display registration, the farmer should explain that the vehicle is being used for agricultural purposes and the vehicle owner qualifies for CAUV.
• Operating on roadways.   The local jurisdiction has authority over the operation of a utility vehicle, APV or ATV on or near roadways.  A farmer may operate one of these vehicles on a roadway and to travel from one farm field to another if the county sheriff (or township police, if applicable) allows it.  This requires the farmer to know whether the county or township allows APVs on the road.  We checked with several county sheriff offices and learned that each allows farm-use APVs and utility vehicles on the roadways as long as operated safely.  Ohio law provides guidance on safe operation for APVs in addition to ordinary traffic rules--the vehicle may not interfere with the movement of vehicular traffic approaching from any direction and the operator must yield the right-of-way to any approaching traffic that presents an immediate hazard.   If the local jurisdiction does not allow APVs on the road or the farmer is operating the vehicle in an unsafe manner, the farmer could receive a traffic citation.
• Operating on berms or in rights-of-way.    A farmer may drive an APV or utility vehicle on the berm or shoulder of a roadway if the terrain permits such operation to be undertaken safely and without entering a traffic lane.   If the farmer cannot operate on the berm without entering a traffic lane, the farmer should operate entirely on the roadway.
• Child operators.  A child who does not hold a driver's license may not operate an APV or utility vehicle on a roadway or on any portion of the right-of-way.  A child under the age of 16 may operate an APV on the family's farm, and may also operate on another's farm or private property if accompanied by a person who is at least 18 and holds a driver's license.
• Other rules of operation.    Ohio law has several prohibitions regarding APV and utility vehicles.  A person may not operate the APV or utility vehicle on a limited access highway or its right-of-way,  on another's private property without permission, on land or waters controlled by the state except where permitted, on the tracks or right-of-way of an operating railroad, while transporting a firearm, bow, or other implement for hunting that is not unloaded and securely encased or for the purpose of chasing, pursuing, capturing, or killing an animal or wildfowl or during the time from sunset to sunrise, unless displaying lighted lights as required by4519.20 of the Revised Code.
• Slow-moving vehicle emblems.    Farmers should be aware that there is confusion over whether an APV or utility vehicle must display a Slow-Moving Vehicle (SMV) emblem.  Ohio law requires display of an SMV emblem on any farm machinery designed for operation at 25 miles per hour or less and defines "farm machinery" as all machines and tools used in the production, harvesting and care of farm products, including farm trailers, agricultural tractors, threshing machinery, hay-baling machinery, corn shellers, hammermills, and machinery used in the production of horticultural, agricultural, and vegetable products.  But Ohio law also prohibits the use of an SMV emblem on any other vehicle.  Is an APV or utility vehicle a piece of "farm machinery" that requires an SMV, or a vehicle that should not display an SMV?  Because there is not a clear answer to this question, farmers should check with local law enforcement for its interpretation of the law.  While asking local law enforcement whether it allows farm-use APVs or utility vehicles on the roadways, also ask whether the vehicle must display an SMV sign.  Several of the law enforcement officers with whom we spoke stated that their county wanted farmers to display an SMV, but others may view that as a prohibited use of the SMV emblem.
• Mud and manure.   Ohio law prohibits the placement of any earth,  mud, manure or other injurious materials on a public highway.  Farmers should take care to clean up the road if the APV or utility vehicle leaves mud, manure or other debris on the roadway.  Violation of the law may result in criminal misdemeanor charges as well as civil liability for accidents or injuries resulting from the road debris.

Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program

A written lease is a valuable tool to use in a farm lease situation, but many farm lease arrangements never progress beyond a conversation and a handshake.    A written lease brings certainty to the farming arrangement by laying out important terms such as lease duration, notice of termination, payment provisions and conservation practices. Verbal farm leases are risky; problems can arise with legal enforceability and disputes over rights and obligations.  For those dealing with a verbal lease agreement, here are a few strategies for protecting interests in the verbal farm lease situation.

Put the verbal lease in writing.  The first recommendation is no surprise; attorneys have long encouraged farmers to use written farmland leases rather than relying on verbal agreements.  But many landowners and tenants are uncomfortable using a written lease, for a variety of reasons.  Consider the following concerns and recommendations for addressing them:

• “We’ve always operated on a verbal agreement and a handshake.”  Transitioning from a long-time verbal agreement to a written lease can be awkward and uncomfortable, and the landowner or tenant farmer who wishes to make the change may be uncertain about how to introduce the change.  To address an awkward transition, consider using a third party to “intervene” and facilitate the process of converting to a written agreement.  Have a farm manager, attorney or accountant explain the reasons for moving to a written agreement and begin the process of discussing lease terms.  Provide the other party with ample time to respond and to consider its own concerns and suggested lease terms.
• “We don’t want everyone to know the terms of our lease.”  Landowners and tenants often express concern that a written farm lease must be recorded in the county recorder’s office, thus revealing private terms such as the price paid for the lease.  In this case, the parties may utilize a provision under Ohio law referred to as the “memorandum of lease.”  Ohio Revised Code section 5301.251 allows the parties to record a shortened form of the farmland lease.  The only provisions the parties must include in a recorded memorandum of lease are the names and addresses of the landowner and tenant, the date of executing the agreement, a description of the leased property, the starting date and duration of the lease and any rights of renewal or extension.   With the recorded memorandum of lease, there is public notice that the lease exists but key terms remain confidential between the landowner and tenant.  The parties can include a term in the written lease verifying their agreement to execute and record a memorandum of lease rather than recording the entire lease.
• “A written lease is overwhelming or too much detail.”  It is true that farmland leases can be lengthy and detailed, although attorneys usually have sound reasons for drafting detailed leases.   Note that the parties can make a gradual transition.  Even a simple lease or a checklist can bring certainty to the relationship by outlining key obligations or providing resolutions if problems arise in the future.  Additionally, there are many good resources that simplify and explain farm lease provisions, and a few good “model” leases for reference.  For helpful resources, visit the website http://aglease101.org .

Pay attention to lease payments and possession.  If the parties can’t convert a verbal lease to a written lease, be aware that one problem with a verbal lease is that it’s not clear when the lease agreement actually begins.  In the event of a dispute, Ohio courts often look to factors such as possession and lease payments to determine the term of the lease.  Two indicators that a farm lease agreement is in place are possession of the property by the tenant coupled with acquiescence by the landowner, or a lease payment made by the tenant and accepted by the landowner.  Both parties should be mindful of these important actions and should maintain records to document these occurrences.

Address financial fairness.  Determining the payment amount for a farm lease is a challenging task, particularly when the farm economy is in flux.  Disagreement over the lease price can quickly end a verbal farm lease relationship.   Thorough research and equitable approaches can maintain the lease relationship by ensuring a financial arrangement that is responsive to the market and fair to both parties.   OSU’s Farm Management website at http://aede.osu.edu/programs-and-research/osu-farm-management contains data on farmland values and cash rental rates.  Consider a flexible cash lease to accommodate economic changes; information on flexible cash leases is also available through OSU’s Farm Management website and at http://www.aglease101.org.

Maintain records of the lease relationship.  Good records that document the leasing history can help establish a “course of dealing” between the parties.  While a written farm lease is preferable, a record of how the parties managed the lease or handled issues in the past can be a useful point of reference for ensuring consistency in the relationship.  If there is litigation over the lease, a court might rely on proof of the parties’ course of dealing to help resolve an issue.  Both parties should maintain thorough records of payments, agreements, farm management practices, soil sampling, nutrient applications, improvements and any other facts or data that establish the details of the leasing relationship.

Maintain communication.   Don’t underestimate the power of good communication between the leasing parties.  A landowner can provide a tenant with valuable certainty by keeping the tenant informed on potential changes with land ownership or financial management.  Tenants can keep a landowner apprised of the condition of the farm property by providing reports on a regular basis, especially in the case of an absentee landowner or a crop share lease.  A report that includes pictures and a brief summary of improvements made,  management practices adopted or crop share calculations may go a long way toward ensuring a solid leasing relationship.

A written and comprehensive farm lease is a valuable tool for farmland owners and tenant farmers alike; those who still rely on verbal farm leases should carefully consider making a transition to a written lease.  Parties that continue to use a verbal farm lease face legal and financial risks, but can adopt some practices to help protect the verbal farm lease situation.  For resources and examples of written farm leases, see http://aglease101.org.

A new rule establishing general regulations for improving the traceability of U.S. livestock moving between states became final on December 20, 2012 and will become effective on March 11, 2013.  The USDA has established the animal disease traceability rule to help target when and where animal disease occurs and to facilitate a rapid response that should reduce the number of animals involved in a disease investigation.  According to USDA Secretary Tom Vilsack, “The United States now has a flexible, effective animal disease traceability system for livestock moving interstate, without undue burdens for ranchers and U.S. livestock businesses. The final rule meets the diverse needs of the countryside where states and tribes can develop systems for tracking animals that work best for them and their producers, while addressing any gaps in our overall disease response efforts.”

The animal disease traceability rule differs from the National Animal Identification System launched by the USDA in 2006 and later discontinued for lack of voluntary participation by producers.   An important guiding principle for the new rule is that it is state-driven. The traceability framework will be owned, led and administered by the States and Tribal Nations with federal support. The rule proposes to provide maximum flexibility for the States, Tribal Nations and producers to work together to find identification solutions that meet their local needs and to maintain traceability data at their discretion. The intent of the rule is to address only those animals moving interstate and to encourage the use of low-cost technology.

We will take a closer look at the rule in the next few months, but for now will share a few important notes about the rule:

• Unless specifically exempted, livestock moved interstate must be officially identified and accompanied by an interstate certificate of veterinary inspection or other documentation, such as owner-shipper statements or brand certificates.
• The use of brands, tattoos and brand registration will be accepted as official identification when accepted by the shipping and receiving States or Tribes.
• Backtags remain an alternative to official eartags for cattle and bison moving directly to slaughter.
• All livestock moved interstate to a custom slaughter facility are exempt from the regulations.
• Chicks moved interstate from a hatchery are exempt from the official identification requirements.
• Unless moved interstate for shows, exhibitions, rodeos, or recreational events, beef cattle under 18 months of age are exempt from the official identification requirement (traceability requirements for this group will be addressed in separate rulemaking)

USDA will work with states to implement the rule in the coming months.  For more information on the new rule, visit http://www.aphis.usda.gov/traceability/.