Winter weather hasn’t yet made its full appearance in Ohio , but we have experienced weather conditions that pose additional hazards for manure management. Now is a good time to consider the legal liabilities associated with managing animal waste, and to ensure that measures are in place to address liability issues. The following offers a brief review of the laws that affect liability for discharges, spills, odors and other problems resulting from manure handling.
A question I frequently hear is “who is liable for the manure – the landowner, the livestock producer, or the manure applicator?” As with many legal questions, the answer is clear: it depends. Several factors can determine allocation of legal liability – language in the applicable statute, private contracts between the parties, or common legal theories. A better answer to this question than “it depends” is that any party might be liable under certain circumstances. This means that all of the parties can benefit from understanding the law and how the law and relevant factors apply in different situations. In the summaries below, I’ve emphasized in italics specific language in the laws that allocate liability to a particular party.
Laws Particular to Facilities with State and Federal Permits
The size of a livestock facility dictates applicable laws for a manure liability situation. Larger confined animal operations that are subject to Ohio ‘s Livestock Environmental Permitting Program and the EPA’s National Pollutant Discharge Elimination System must comply with separate state and federal laws that require approved permits for a facility. The terms of a facility’s permit include limitations on discharges of waste into waterways. The operator of a facility that emits waste pollutants in excess of that specified by the permit, or that otherwise violates the terms of the permit, can be liable for civil and criminal penalties, restoration or repair costs, and reimbursement of the government’s response costs.
A key factor in liability for permitted facilities, then, is familiarity with the permit, its restrictions and its management plans. Proper implementation of management plans and careful monitoring of permit limitations can help avoid a permit violation and ensuing liability.
Ohio Agricultural Pollution Abatement Law
All operations handling animal waste need to understand Ohio ‘s Agricultural Pollution Abatement Law, found in Chapter 1511 of the Ohio Revised Code. This law grants the Ohio Division of Soil and Water Conservation authority to pursue damages caused by incidents of “agricultural pollution.” Agricultural pollution is defined by the law as the “failure to use management or conservation practices in farming or silvicultural operations to abate wind or water erosion of the soil or to abate the degradation of the waters of the state by animal waste or soil sediment.” The local SWCD typically seeks voluntary abatement of a pollution situation by the operator. If the voluntary approach fails, the division chief may order any person responsible for causing or allowing an unauthorized release, spill, or discharge of agricultural pollution to cease and abate the pollution. Those who fail to do so can be liable for costs incurred in investigating, mitigating, minimizing, removing or abating the discharge, and can also be subject to misdemeanor charges and fines.
Civil liability protection is another important part of this law. Where an operator is in substantial compliance with an operation and management plan approved by the chief or the local Soil and Water Conservation District board, the law provides a defense that may be raised in response to a civil lawsuit for nuisance. While the law doesn’t require the operation to have such a plan, it rewards those who voluntarily implement a plan prepared in partnership with the division and its regulations and guidelines (and also offers cost-share funds). This provision of the Agricultural Pollution Abatement Law can be quite valuable for operations handling manure, which is often a basis for allegations that an operation is a nuisance.
Ohio Steam Litter Act and Wildlife Protection Laws
A few other state laws come into play where there’s been a spill or discharge of manure. The Ohio Division of Wildlife, through Ohio’s Stream Litter Act and wildlife protection laws, may pursue criminal prosecution, fines, and investigation and response costs against any person who places or disposes of waste in a ditch, stream, river, lake, pond or other watercourse or any person who causes or allows an unauthorized discharge of material into the air, ground or surface water that results in the death of a wild animal.
Land Application of Animal Waste
Discharges and spills of waste resulting from land application create the possibility of liability through any of the above-described laws and permits. Where the applicator, landowner and livestock operator are different parties, these situations often present the question of “which party is liable?” As stated previously, several factors dictate the outcome to this question: the terms and restrictions in a permit, the agreement between the parties, who has authority and control over the waste application, and the chain of events that resulted in the discharge or spill. Clearly written agreements between the various parties could address most of these factors and help alleviate the uncertainty of liability allocation.
The Threat of Civil Nuisance
One area in which we can clearly identify the potentially liable party is that of nuisance. A nuisance claim based on manure should be made against the owner of the property or business containing the manure. Where the manure causes an “unreasonable interference with the use and enjoyment” of other property owners, liability could result through a civil action. Several liability protection mechanisms apply to agricultural nuisances, however. Enrollment with the County Auditor in Ohio ‘s Agricultural District Program and compliance with applicable laws, regulations or generally accepted agricultural practices gives the landowner a defense to a civil nuisance suit. Permit holders under the Livestock Environmental Permitting Program also receive nuisance protection if operating in accordance with the permit, as do those in the above-mentioned Agricultural Pollution Abatement Program.
We typically think of manure liability in terms of environmental and nuisance risk, but manure storage also poses the risk of harm to property visitors. A landowner or facility owner has a duty to keep property visitors safe from dangerous conditions on the property, with the exception of adult trespassers. Failure to do so could create liability by way of a negligence claim. A manure storage structure could be considered a dangerous condition, particularly to children, so the owner or operator should take reasonable efforts to minimize the dangers and keep property visitors away from the storage structure. Simple measures, such as fences, signs, lighting, covers and locks, can go a long way in reducing liability risk.
Manure on Roadways
A final area of manure liability risk concerns manure on roadways. Two Ohio highway laws come into play. The laws prohibit the placing of any earth or mud on a public roadway and the dropping or placement of any material on a roadway that can cause harm to a vehicle or person. Both laws allow for criminal misdemeanor prosecution. Additionally, the legal theory of negligence could be advanced by a party harmed by manure on the roadway. In this case, the party would have to prove that the manure handler’s failure to uphold the legal duty to keep manure off the road caused harmed to the party. If successfully advanced, damages could be awarded to cover the party’s losses and injuries.