Environmental law

Legislature agrees on changes to Ohio Livestock Environmental Permitting Program

Bill establishes time limits for township and county infrastructure review

A bill approved by the Ohio General Assembly proposes limiting the amount of time county and township officials have for recommending local infrastructure needs for the operation or expansion of a Concentrated Animal Feeding Facility (CAFF).  Both the House and Senate have approved H.B. 22, sponsored by Rep. Buchy (R-77).  The bill now awaits action by Governor Kasich.

Recently introduced on May 17, 2011, H.B. 22 proposes a 75 day time limit for county commissioners and township trustees to provide final recommendations for improvements to local infrastructure that are needed to accomodate a CAFF.   Notification by the CAFF to the county and township is a required step in the Livestock Environmental Permitting Program (LEPP) permit application process.  Information on anticipated traffic routes and number and weights of vehicles must accompany the notification.  Under current law, the county and township must next provide initial recomendations to the CAFF for needed infrastructure improvements.  The CAFF may accept the recommendations or may propose an alternative, and the county and township must then render written final recommendations for infrastructure improvements.  The CAFF must submit the county and township’s final recommendations in its LEPP permit application.

Under the language agreed to by the legislature in H.B. 22, if the county or township fails to provide the written final recommendations in 75 days, the CAFF may proceed with the permit application by submiting an affidavit in lieu of the written final recommendations.  The affidavit must state that the CAFF provided the required notification but did not receive written final recommendations from the county or township within 75 days of giving the notification.

The legislature’s approval of H.B. 22 comes in the wake of a controversial denial of a LEPP permit application by Hi-Q for an egg laying facility in Union County.  ODA Director Zehringer denied Hi-Q’s application because it did not contain the required final infrastructure recommendations from county and township officials.  Hi-Q and Union County had reached an impasse on infrastructure issues, and Hi-Q submitted the permit without any final recommendations by the county.  (See our earlier post on the Director’s decision.)  Under H.B. 22′s language, Hi-Q could have submitted an affidavit instead of the written final recommendations because more than 75 days had passed since Hi-Q’s original notification to the county and township.    The Director thus would not have had to deny the permit application for lack of county and township written final recommendations for infrastructure improvements.

H.B. 22 also proposes changing LEPP from a program to a Division of Livestock Environmental Permitting, and contains a number of other revisions to ODA programs and regulations.  See the analysis of H.B. 22 on the Ohio Legislature’s website.

ODA Denies Egg Farm Permit as Legislation Proposes Change to Permit Program

Current bill in House would yield different outcome for Hi-Q CAFF permit

In a unique and controversial case, the Ohio Department of Agriculture (ODA) has denied an application under its Livestock Environmental Permitting Program for Hi-Q Egg Products, LLC to establish an egg laying facility in Union County.   In denying the application, ODA Director Zehringer followed the recommendations made in April 2011 by the ODA hearing officer who reviewed the permit application (see our earlier post).  The hearing officer had recommended denial on the basis of an incomplete application, because  Hi-Q’s application did not include a written statement from local officials certifying that final recommendations had been made for local infrastructure improvements and costs, as required by program regulations (OAC 901:10-1-02(A)(6)).  Hi-Q claimed that the county and township failed to provide the recommendations, while the county and township argued that there were no final recommendations because  Hi-Q refused to discuss an alternative transportation route.  In agreeing that the recommendations were not included in the application, Director Zehringer stated that there was “no other viable option but to deny the [permit] due to an incomplete application.” 

Ohio’s  Livestock Environmental Permitting Program (LEPP) regulates the installation and operation of  large Confined Animal Feeding Facilities (CAFFs).  Critics have long complained that the program fails to consider the potential impacts of CAFF development  upon the local community.  Those concerned about local impacts have used the public hearing process to voice opposition to CAFF permits, but have never successfully prevented approval of a permit.  Until now, the program’s obscure requirement for county and township approval of infrastructure improvements has gone unnoticed as a prevention mechanism by such opponents.   

While the Hi-Q denial is a first, opponents of large livestock operations won’t have cause to celebrate the decision for long if a current legislative proposal meets with success.  H.B. 229, introduced May 17, 2011 by Rep. Buchy, will place a time limit on the county and township officials who must consider local infrastructure improvements needed for a CAFF permit application.  According to the proposal,  local officials would have 75 days after receiving notice of the proposed facility to render a written statement on local infrastructure improvements and costs.  After 75 days, the permit applicant may submit a notarized affidavit stating that it had provided local officials with notice but did not receive any written final recommendations from the local government within the required timeframe.  Under the law as proposed by H.B. 229, ODA could not deny a permit application that lacks the written statement from local officials as long as 75 days have passed after giving notice and the permit applicant submits the notarized affidavit rather than the written statement from local officials. 

H.B. 229 is currently before the House Agriculture and Natural Resources committee.  Visit this link to view H.B. 229 and here for Director Zehringer’s press release on the Hi-Q permit.

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.

Read the Hi Q ODA Hearing Officer Recommendation or visit the Ohio Livestock Environmental Permitting Program.

Revisions Coming to the Ohio Agricultural Pollution Abatement Program?

Program revisions include new rules to address manure impacts on Ohio lakes

The Ohio Department of Natural Resources (ODNR) will hold a public hearing next week for its proposed revisions to the Ohio Agricultural Pollution Abatement Program,  a water quality program that encourages voluntary actions to manage water pollution impacts from agricultural and silvicultural land uses, provides cost-sharing for agricultural pollution prevention, and allows ODNR to take measures against those who do not voluntarily address an agricultural pollution problem.  For purposes of the program, “agricultural pollution” is the failure to use appropriate practices in farming or silvicultural operations  to abate soil erosion or water quality impacts caused by animal waste or soil sediments.  Local Soil and Water Conservation Districts are initially responsible for implementing the program, with final oversight and enforcement authority held by ODNR’s Division of Soil and Water Resources.

The rule revisions come partially as a result of the agency’s mandatory five-year review of the program.   However, several new rules–undoubtedly the most controversial proposals–are in response to the high blue-green algae levels  in Grand Lake St. Mary’s and other Ohio lakes this past summer.  Studies indicate that manure is one of the contributors to the proliferation of the blue-green algae.  A plan of action to improve the lake’s water quality developed in July by ODNR, the Ohio Department of Health and the Ohio EPA proposed several actions related to manure management, including these new rules for the Agricultural Pollution Abatement Program:

  • Declaration of a “watershed in distress.”    The rule would give the chief of ODNR’s Division of Soil and Water Resources, with the approval of the Ohio Soil and Water Conservation Commission, the authority to declare a ”watershed in distress” where the watershed has aquatic life and health that is impaired by nutrients or sediment from agricultural land uses and where there is a threat to public health, drinking water supplies, recreation, or public safety and welfare.  
  • Pollution minimization in distressed watersheds.   The  distressed watershed designation requires all owners, operators and persons responsible for land application of manure in the watershed to minimize pollution by following applicable standards, methods or management practices; failure to do so is a program violation, regardless of whether pollution actually results from the failure.  
  • Land applications of manure in distressed watersheds.  After a watershed remains designated ”in distress” for more than two years, the rule places restrictions on land applications of manure, including required prior approval from the state for applications between December 15 and March 1, injection or incorporation for manure applied to  frozen or snow pack ground before December 15 or after March 1 and limitations on applications during certain types of weather.  Additionally, all owners and operators in the distressed area must maintain 120 days of manure storage.
  • Nutrient management plans in distressed watersheds.  Each owner, operator or person responsible for producing, applying or receiving more than 350 tons or 100,000 gallons of manure annually in a distressed watershed must develop a nutrient management plan as specified by the regulations.

In response to the proposed new rules, the Ohio Farm Bureau has already indicated that, while it supports the general intent to address water quality issues in Grand Lake St. Marys, it is concerned that the distressed watershed provisions are too vague and may exceed ODNR’s scope of authority.  The legislature originally granted ODNR’s authority for the Ohio Agricultural Pollution Abatement Program in Ohio Revised Code Chapter 1511.  Interestingly, in the joint plan of state actions for water quality improvement at Grand Lake St. Mary’s, the state agencies admitted that they were asking the Ohio General Assembly to support “additional state regulatory authority” by way of approval of the proposed rule revisions by the legislature’s Joint Committee on Agency Rule Review (JCARR).  Whether this additional authority exceeds the scope of authority originally granted by the Ohio legislature is a question that JCARR will address in its review of the proposed rules.

The remaining proposed revisions to the agricultural pollution abatement program regulations intend to address a need for more rapid handling of pollution situations as well as problems identified through a program review conducted last year by an appointed advisory committee.   Other revisions in the rules package  include:

  • The inclusion of manure applicators as parties responsible for land application of manure, in addition to the current rule’s allocation of responsibility for the owners or operators of animal feeding operations. 
  • A number of changes designed to create more flexibility and efficiency in program oversight and administration by allowing earlier involvement of the Division of Soil and Water Resources.
  • An increase of cost share monies to a maximum of $30,000 and expansion of the types of practices eligible for cost-sharing;
  • A change throughout the rules from “animal waste” to “manure,” which includes animal excretia, discarded products, process waste water, process generated waste water, waste feed, silage drainage, and compost products from mortality composting, on farm biodigerster operations or animal excretia composting. 
  • Required facility modifications where seepage of animal manure occurs.
  • Changing “concentrated animal feeding operations” to “animal feeding operations” throughout the rule and clarifyingthat the program does not apply to facilities regulated through the state’s Livestock Environmental Permitting Program or NPDES permit program.

The ODNR has posted the rules package and supporting materials on its website.  The public hearing for the rules proposal will take place on November 8, 2010.