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The Ohio Senate has approved a bill directing the Ohio Department of Agriculture (ODA) to establish a fertilizer applicator certification program in Ohio.  The sponsors of Senate Bill 150, Senator Cliff Hite and Senator Bob Peterson, designed the legislation to address agricultural nutrient runoff into Ohio waterways and the algae problems in Grand Lake St. Marys and Lake Erie.  According to Senator Hite, the bill hinges on a new education and certification program that will give farmers additional information about fertilizer and nutrient use best practices.    

Here are answers to a few basic questions farmers might have about the proposed program:

When would the program begin?  If the bill is passed by the Ohio House of Representatives, the fertilizer application certification program would begin on September 30 on the third yearsfollowing the law’s effective date.   

Who would have to be certified?  Someone who applies “fertilizer” for agricultural production on land more than 50 acres in size would have to be certified by ODA as a fertilizer applicator, or would have to be acting under the instruction of a certified fertilizer applicator. 

Would there be any exemptions from the program?  Those who would make applications of fertilizer on land parcels of 50 acres or less would be exempt from the certification requirement.  The bill would also allow the ODA director to establish additional exemptions for certain persons or certain “types of cultivation.”

What fertilizers would the program cover?  Under the bill, “fertilizer” means any substance containing nitrogen, phosphorus, or potassium or any recognized plant nutrient element or compound that is used for its plant nutrient content or for compounding mixed fertilizers.  The definition of fertilizer does not include lime, manure and residual farm products such as bedding, wash waters, waste feed, silage drainage and certain dead animal composts, unless those are mixed with fertilizer materials or distributed with a guaranteed analysis.

What would the certification program involve?  The Senate’s bill directs that the program must educate applicants on the time, place, form, amount, handling, and application of fertilizer—commonly referred to as the "4-Rs" of nutrient stewardship (right fertilizer source at the right rate, at the right time and in the right place).  The bill also states that the program must "serve as a component of a comprehensive state nutrient reduction strategy addressing all sources of relevant nutrients" and must "support generally practical and economically feasible best management practices."

Would there be a certification fee?  The bill allows the ODA to establish a fee for applicants who seek certification, but the fee may not exceed the fee charged for the state’s pesticide applicator certification program.  Additionally, the bill exempts persons who hold an Ohio commercial or private pesticide applicator’s license from paying an additional application fee if they also seek fertilizer application certification.

Other important provisions in Senate Bill 150 include:

Recordkeeping requirements.  Certified applicators would have to maintain fertilizer application records for at least three years from the date of a fertilizer application.  The records must include the date, place and rate of application, an analysis of the fertilizer and the name of the person applying the fertilizer.  Applicators would not be required to submit the records to ODA on a regular basis, but would have to make the records available upon a request by the agency.

Emergency revocation and suspension powers.  The bill would allow the ODA director to immediately deny, suspend, revoke, refuse to renew or modify a fertilizer applicator certificate if there is "substantial reason to believe the certificate holder recklessly applied fertilizer in such a manner that an emergency exists that presents a clear and present danger to human or animal health."

Voluntary Nutrient Management Plans.  The bill would allow a person who owns or operates agricultural land to develop a voluntary nutrient management plan in collaboration with Ohio State University, the Soil and Water Conservation District or the Natural Resource Conservation Service or its certified providers and submit the plan for approval by the Soil and Water Conservation District.  A voluntary nutrient management plan would be an important critieria for immunity from civil liability, discussed below.

Legal Defense against Civil Actions.   Under the bill, a person sued in a claim involving liability for an application of fertilizer would have a legal defense that would prevent liability upon showing these three criteria:

• The person is a certified fertilizer applicator or under the control of a certified applicator;
• The person properly maintained fertilizer application records as required by the certification program;
• The fertilizer was applied according to and in substantial compliance with an approved voluntary nutrient management plan.

Watch now for the agricultural nutrient management bill to be introduced in the Ohio House of Representatives for final approval.  More information about S.B. 150 is available here.

Litigation that arose from a drainage improvement project completed in 2002 has finally ended with a decision by the Ohio Supreme Court.  The court announced today that it will not accept the case for review, which allows the ruling by the Third District Court of Appeals in favor of the Henry County Engineer to remain in place.

Richard and Rodney Rohrs sued the county engineer  and several staff members in 2005 after a drainage project completed by the county flooded several acres of a farm field the Rohrs had rented from Gerald Westhoven.  In the late 1990s, Westhoven approached the Henry County Engineer about flooding problems on Westhoven's farm and the possibility of cleaning out the open drainage ditch that ran between his land and the county road.  The engineer proposed an alternative solution, to lay drainage tiles and fill the ditch, and offered to classify the work as a road safety improvement project to be handled through the engineer's budget rather than through the petition ditch process that would result in assessments on property owners.

The county engineer installed the new drainage system in 2002.  Westhoven entered into a lease for the land with the Rohrs in the Spring of 2003.  The Rohrs planted a tomato crop on the parcel; by July, part of the field was under water.   After the harvest season, the county engineer and Westhoven attempted to locate a drainage tile that could be the source of the flooding but they could not find any tile in the flooded area.  The county then installed a new catch basin near Westhoven's property to resolve the flooding problem, with plans to tie in any field tile that Westhoven might later discover on his land.  The Rohrs continued to lease the farmland from Westhoven.

According to witness testimony, the cause of the 2003 flooding was a drainage tile and catch basin just south of Westhoven's property that had been cut off during construction of the road improvement project drainage system; the engineer's staff  had filled the tile and catch basin because it did not appear to be a functioning tile and did not exist on any of the county's plans.  Excavation on the Westhoven property several years later revealed a drainage tile located just 15 feet from the filled tile and catch basin.  The newly discovered tile, which Westhoven had not previously reported to the engineer,  had a seed bag stuffed into its outlet, which was near the filled catch basin.   The Rohrs claimed that the engineer's staff had intentionally stuffed the seed bag into the functioning tile, while the engineer's staff claimed they did not know about the tile.   The county surmised that the seed bag had been used in the previous filling of the tile and catch basin that they had believed to be non-functioning.

The Rohrs sought $70,000 for losses to their 2003 tomato crop as a result of the flooding.  Their legal causes of action included several tort claims and violations of federal and state due process rights.  They also asked the court for a writ of mandamus to order the county to compensate them for a partial "taking" of their property by the county engineer.   The Henry County Court of Common Pleas, after seven years of litigation, rejected each of the Rohrs' claims.

The Rohrs appealed with no avail to the Third District Court of Appeals.  The appellate court agreed with the trial court's conclusion that state law prevented tort liability for the flooding because the county was entitled to governmental immunity under Ohio Revised Code 2744.02(A)(1) i.  The court stated that the Rohrs had failed to prove that any of the law's exceptions to governmental immunity applied to the situation.  In response to the Rohrs' argument that the county had committed a partial "taking" of property, the appeals court agreed with the trial court that a "taking" had not occurred for three reasons:  because the flooding was accidental and incidental rather than an intentional taking of property, because the alleged taking was not for a public use as required by the Constitution and because the Rohrs had other remedies for their harm, such as a tort claim against Westhoven and the failed tort claims against the county engineer.  As such other remedies were available, the court also agreed with the trial court that the Rohrs failed to prove violations of their due process rights.

In their request for a review by the Ohio Supreme Court, the Rohrs focused on the lower courts' conclusions that a "taking" had not occurred.  The Henry County Farm Bureau and the Ohio Farm Bureau filed a brief in support of the Rohrs, urging the Supreme Court to accept the case and review the takings issue.  The Court today declined to accept the case by a vote of 5--2 with Justices Paul Pfeifer and Judith French dissenting.  Without a review by the Ohio Supreme Court, the appellate court decision stands as the final resolution of the case.

The decision of the Third District Court of Appeals in State ex rel. Rohrs v. Germann is available here.

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

We often explain the Ohio Recreational User's Statute to farmland owners because the  law provides liability protection when someone asks to hunt, fish, snowmobile or conduct other recreational activities on the farm.  As long as the landowner grants permission for the use and does not receive a fee from the recreational user, the landowner does not owe a legal duty to assure that the premises are safe for the user.  This immunity from liability encourages those who own non-residential land to open the land for recreational activities.

Landowners always have "what if" type questions when we explain this law.  Recently, the Ohio Supreme Court answered one of those "what if" questions:  what if I modify the property in some way and create a hazardous condition that causes an injury; does the Recreational User's Statute still protect me from liability?  The Supreme Court's response:  yes.  But the court was not in complete agreement on the issue.

The accident at the heart of the case occurred when an 18 year old boy went sledding in a park owned by the City of Circleville, Ohio.  The boy slid head first into a wooden railroad tie which the city had transported to the park from a construction site.  The city planned to temporarily store the railroad tie and other construction debris at the park because no storage space was available at its maintenance facility.  Upon hitting the railroad tie, the boy broke his neck and became paraplegic.

In its decision in the lawsuit filed by the boy, the trial court determined that the city was immune from liability because of the Recreational User's Statute, which grants recreational immunity to governmental as well as private landowners.  The boy appealed the case to the Fourth District Court of Appeals, which affirmed the trial court's decision.  The Ohio Supreme Court agreed to review the case.

The question before the court was whether the city's action of placing the railroad ties in the park created an exception from the immunity provided by the Recreational User's Statute.  The boy's legal counsel argued that storage of the railroad ties and other construction debris in the park had changed the property's essential character so that it was no longer a recreational property and should not fall under the protection of the Recreational User's Statute.   A majority of the court disagreed, concluding that the city’s alleged creation of a hazard on the premises did not affect the city’s immunity.

"We cannot accept as reasonable any contention that the presence of a railroad tie in a public park changes its essential character as a recreational space,” wrote Justice Sharon Kennedy.  “Critics may claim that our decision reaches a harsh result.  However, the language of the recreational-user statute is plain; a property owner owes no duty to a recreational user to keep the property safe for entry or use.  Creating an exception to this immunity is a policy decision that comes within the purview of the General Assembly, not the courts. … [W]e will not create an exception by judicial fiat.”

Justice William O’Neill entered a dissenting opinion, joined by Justice Paul Pfeifer, who also wrote a separate dissent.   “[L]et’s be accurate here — we are not talking about a single railroad tie," stated Justice O'Neill.  "That tie that crippled this child was part of an overall scheme of disposal of huge mounds of debris that the city had incredibly decided to place in the middle of a recreational park! Cover it with a light dressing of snow, and the perfect killing field was created. . . . [T]he city made a decision to dump huge mounds of debris into a city-owned park. When it did that, it lost its “recreational user” immunity entirely."

In his dissent, Justice Pfeifer questioned the protection afforded by the Recreational User's Statute.  The immunity provisions in those statutes, he stated, "provide unreasonable and unconstitutional protection to government entities that own property."

What does the Court's decision mean for agricultural landowners? 

While the case did not involve an agricultural property, the decision does have impact for agricultural landowners.  A few lessons from the case:

Affirmation of broad landowner immunity.  The court's decision affirms the broad immunity afforded by Ohio's Recreational User's Statute.  We often hear questions such as "but what if I left my equipment out in the field?" or "but what if they fall into that hole I just dug?"   Based on the court's decision, the landowner has no duty to make the property safe and won't be liable for injuries caused by any "hazards" the landowner created on the property.   Remember that this immunity applies to "recreational users"-- property visitors who have the landowner's permission to engage in recreational activities such as hunting, fishing and snowmobiling on non-residential property and who haven't paid the landowner for the recreational activity (with an exception for hunting lease payments; landowners may receive hunting lease payments and still retain recreational user immunity).

Take recreational permission seriously.   This lawsuit arose because someone suffered a serious injury.  Even with immunity protection, landowners should think twice about allowing recreational users on the property when highly dangerous situations are present.  If there's a good chance that someone could suffer harm from the situation, avoid the potential of harm and simply don't grant permission for people to be on the property.

Immunity comes at a cost.    While it can prevent landowner liability, the Recreational User's Statute can't stop a harmed party from taking the landowner to court.    The city incurred not only the costs of defending itself through three court hearings, involving attorney fees and the city's time, but also the cost of negative publicity.  Surely, more responsible land management decisions would have cost less and kept someone from suffering harm.

The Ohio Supreme Court's decision in Pauley v. Circleville is available here.  The Ohio Recreational User's Statute is in Ohio Revised Code Sections 1533.18 and 1533.181.

Confusion at Federal Level Leaves Farmers Unsure of SPCC Rule Compliance    

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

A common joke among attorneys is that the answer to every legal question is "maybe," and that answer is appropriate when asking whether farms will be exempted from complying with the Oil Spill Prevention, Containment and Countermeasure (SPCC) rule.

May 10, 2013 was the compliance deadline for the EPA rule requiring SPCC plans for farms storing above a threshold amount of oil.  But several legislators have spoken out against the regulation and intend to exempt most farms from its requirements.   As we reported in an earlier post, legislators successfully delayed EPA's ability to enforce the SPCC rule against farms until September 23, 2013, and also drafted the legislation to exempt many farms from the SPCC rule.  But while the Senate and House have each passed proposals with SPCC exemption language, they've used two different bills to do so--the Senate's Water Resources Development Act and the House's Farm Bill.  Neither bill has passed both chambers and the SPCC exemption remains in limbo today, the date after which the EPA may begin enforcing the rule.

In mid-August, two sponsors of the exemption, Senators Inhofe (R-OK) and Pryor (R-AR), sent a letter to EPA Administrator Gina McCarthy regarding SPCC enforcement.  The letter clarified that Congress plans to exempt most farms from the rule and suggested that the EPA should not attempt to retroactively enforce the rule back to the original compliance date of May 10, 2013.  Time will tell whether the senators' letter will prevent EPA from penalizing farms that did not have an SPCC plan by May 10 but had an oil spill anytime after the May 10 compliance deadline.

What Should Farmers do about SPCC Plans now?

Farmers who have been waiting to see if Congress would exempt them from the SPCC rule have to make a decision:  comply now or risk penalties for non-compliance.  A few considerations may help the decision-making process:

• Operating without an SPCC plan carries financial risk.  If a farm that is subject to the SPCC rule does not have a plan but does have an oil spill that discharges into a waterway, the farm will incur additional penalties for failing to have and implement an SPCC plan.  These penalties vary depending upon the size of the facility and the severity of the spill; our research revealed recent fines ranging from $1,500 to over $55,000.  Our research also shows the cost of an SPCC plan from a certified engineer or consulting firm to begin at around $1,000, with higher costs for larger farms.
• Only certain farms must comply with SPCC.   Farms that store less than 1,320 gallons of diesel, gasoline, hydraulic oil, lube oil, crop oil or vegetable oil aboveground or less than 42,000 gallons below ground do not need an SPCC plan.   All other farms might need an SPCC plan if it's possible that spilled oil could discharge into a waterway.  To learn more about whether a farm is subject to the SPCC plan rule, visit here.
• Smaller, lower-risk farms can "self-certify" their SPCC plan.  The SPCC rule allows farms with smaller oil storage and no history of significant oil spills ("Tier I farms") to create and implement an SPCC plan; other farms require certification by an engineer.  The EPA provides a model template for  Tier I farms on their website.  Be aware, however, that preparing the plan requires some work:  a thorough assessment of the farm's oil storage, selection and installation of appropriate containment measures and proper training and response practices.  For those who don't want to prepare their own plan, consider a consultant.  Consulting companies offer services such as assessment, consultation, plan development, certification and future inspections.
• A farm may be able to seek a compliance deadline extension.   The SPCC rule allows a farm that couldn't meet the compliance deadline to submit a written request for an extension to the EPA regional administrator for the state where the farm is located.  There are several reasons EPA may grant an extension:  because a Professional Engineer (PE) isn’t available to create and certify a plan, if the farm is located in an area impacted by floods, or because facility modifications could not be completed before the deadline.  For more on seeking an extension, visit this link.
• Insurance coverage may be at risk.  Non-compliance with the law can negate insurance coverage; most insurers would likely deem the failure to have an SPCC plan after September 23, 2013 as "non-compliant."
• Oil storage containment is good risk management.  Even without the SPCC rule, assessing and managing oil storage and handling practices on the farm can pay off.  Consider the recent case of an Ohio farm with a leaking oil tank that polluted a nearby waterway; the farm paid over $15,000 in fines and cleanup costs.

While "maybe" is a good answer to whether Congress will exempt many farms from the SPCC rule, it isn't a good answer to whether farmers should ignore the SPCC regulation because of the confusion in Congress.  For more on SPCC and agriculture, visit the EPA's web page.