Category Archives: Environmental

Law bulletin helps livestock farmers with new air emissions reporting

Beginning today, farmers must now 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.

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Ohio EPA sues Rover Pipeline for polluting state waters

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.

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Farms must now begin reporting air releases of hazardous substances from animal wastes

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 by 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?

  1. Review the EPA’s interim guidance on CERCLA and EPCRA Reporting Requirements, available here.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

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What will dicamba changes mean for farmers?

Last week, the Environmental Protection Agency (EPA) announced an agreement with Monsanto, BASF and DuPont to change dicamba registration and labeling beginning with the 2018 growing season.  EPA reports that the agreement was a voluntary measure taken by the manufacturers to minimize the potential of dicamba drift from “over the top” applications on genetically engineered soybeans and cotton, a recurring problem that has led to a host of regulatory and litigation issues across the Midwest and South.   The upcoming changes might alleviate dicamba drift issues, but they also raise new concerns for farmers who will have more responsibility for dicamba applications.

The following registration and labeling changes for dicamba use on GE soybeans and cotton will occur in 2018 as a result of the agreement:

  • Dicamba products will be classified as “restricted use” products for over the top applications. Only those who are certified through the state pesticide certification program or operating under the supervision of a certified applicator may apply the product.  Training for pesticide certification will now include information specific to dicamba use and application, and applicators will be required to maintain records on the use of dicamba products.
  • The maximum wind speed for applications will reduce from 15 mph to 10 mph.
  • There will also be greater restrictions on the times during the day when applications can occur, but details are not yet available on those restrictions.
  • Tank clean-out instructions for the prevention of cross contamination will be on the label.
  • The label will also include language that will heighten the awareness of application risk to sensitive crops.

Farmers should note that the additional restrictions and information on dicamba labels shifts more responsibility for the product onto the applicator.  An applicator must take special care to follow the additional label instructions, as going “off label” subjects an applicator to higher risk.   If drift occurs because of the failure to follow the label, the applicator is likely to be liable to the injured party for resulting harm and may also face civil penalties.  Producers should take care to assess the new dicamba labels closely when the manufacturers issue the revised labels.

To learn more about legal issues with pesticide use, be sure to sit in on the Agricultural & Food Law Consortium’s upcoming webinar, “From Farm Fields to the Courthouse:  Legal Issues Surrounding Pesticide Use.”   The webinar will take place on Wednesday, November 1 at Noon EST and will feature an examination of regulatory issues and litigation surrounding pesticide use around the country by attorneys Rusty Rumley and Tiffany Dowell Lashmet.  To view the free webinar, visit http://nationalaglawcenter.org/consortium/webinars/pesticide/

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U.S. Senate passes changes to federal Harmful Algal Bloom and Hypoxia Research and Control Act

Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program

The U.S. Senate has passed a bill sponsored by Ohio senators Sherrod Brown and Rob Portman that intends to improve the federal response to water pollution by amending the Harmful Algal Bloom and Hypoxia Research and Control Act of 1998.  Senate Bill 1057 will now move on to the House of Representatives for debate.

What are harmful algal blooms and hypoxia?

The EPA defines harmful algal blooms as “overgrowths of algae in water,” some of which “produce dangerous toxins in fresh or marine water.” The toxins can be dangerous for humans and animals. One major contributor to algal blooms is an excess of nitrogen and phosphorus in the water.  Hypoxiacan also be caused by too much nitrogen and phosphorus in the water. The EPA defines hypoxia as “low oxygen” in water. Hypoxia sometimes goes hand-in-hand with algal blooms, because as algae dies, it uses oxygen, which in turn removes oxygen from the water. Algal blooms and hypoxia have been a problem in Lake Erie and other parts of the country.

Background of the law

The Harmful Algal Bloom and Hypoxia Research and Control Act was passed in 1998 in response to harmful algal blooms and hypoxia along the coast of the United States. When passing the law, Congress cited scientists who said both problems were caused by “excessive nutrients.” Furthermore, Congress found that harmful algal blooms had caused animal deaths, health and safety threats, and “an estimated $1,000,000,000 in economic losses” in the previous decade.

The law established an interagency Task Force on Harmful Algal Blooms and Hypoxia (Task Force), which was charged with submitting an assessment to Congress on the “ecological and economic consequences” of both harmful algal blooms and hypoxia. The assessments were to include “alternatives for reducing, mitigating, and controlling” harmful algal blooms and hypoxia. A number of other reports and assessments were also required, which were to all culminate in a plan to combat and reduce the impacts of harmful algal blooms. Additionally, the Act singled out the areas of the Northern Gulf of Mexico and the Great Lakes. For these two areas, the Act required additional progress reports and mitigation plans.

The Act has undergone a few amendments throughout the years. The amendments have expanded and/or renewed the duties of the Task Force and other state and federal actors. Most notably, amendments in 2014 created the national harmful algal bloom and hypoxia program (Program) and a comprehensive research plan and action strategy. Under the Program, the National Oceanic and Atmospheric Administration (NOAA) was charged with administering funding to programs combatting algal blooms and hypoxia, working with state, local, tribal, and international governments to research and address algal blooms and hypoxia, and supervising the creation and review of the action strategy, among other duties. The action strategy identified the “specific activities” that the Program should carry out, which activities each agency in the Task Force would be responsible for, and the parts of the country where even more specific research and activities addressing algal blooms and hypoxia would be necessary.

What changes are proposed?

SB 1057 would make a number of changes and additions to the current law. Overall, the goal of the bill seems to be to strengthen the federal government’s ability to research and respond to water pollution in the form of algal blooms and hypoxia. The most important amendments in the bill would:

  • Add the Army Corps of Engineers to the list of agencies on the Task Force.
  • Combine the sections on freshwater and coastal algal blooms, and require that scientific assessments be submitted to Congress every five years for both types of water.
  • Establish a website that would provide information about the harmful algal bloom and hypoxia program (Program) activities to “local and regional stakeholders.”
  • Require the Task Force to work with extension programs to promote the Program and “improve public understanding” about harmful algal blooms and hypoxia.
  • Require the use of “cost effective methods” when carrying out the law.
  • Require the development of “contingency plans for the long-term monitoring of hypoxia.”
  • Fund the Program and the comprehensive research plan and action strategy from 2019 through 2023.

Most importantly, SB 1057 would add a completely new section to the law that would allow federal officials to “determine whether a hypoxia or harmful algal bloom event is an event of national significance.” Under the new language, the federal official can independently determine that such an event is occurring, or the Governor of an affected state can request that a determination to be made.

When making the determination, the federal official would have to take a number of factors into consideration including:

  • Toxicity of the harmful algal bloom;
  • Severity of the hypoxia;
  • Potential to spread;
  • Economic impact;
  • Relative size in relation to the past five occurrences of harmful algal blooms or hypoxia events that occur on a recurrent or annual basis; and
  • Geographic scope, including the potential to affect several municipalities, to affect more than one State, or to cross an international boundary.

Finally, in the case an event of national significance is found, the the federal official would have the power to give money to the affected state or locality to mitigate the damages. However, SB 1057 states that the federal share of money awarded cannot be more than 50% of the cost of any activity. The federal official would have the power to accept donations of “funds, services, facilities, materials, or equipment” to supplement the federal money.

The bill now goes to the House of Representatives for consideration. Text and information on SB 1057 is available here. To read the current law, click here. For further information on water pollution, check out the EPA’s pages on harmful algal blooms and hypoxia.

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Ohio Department of Agriculture Updates Fertilizer Certification Program Rules

We’re happy to return to our blog after a short summer recess, but are sad to have lost fellow blogger and Law Fellow Chris Hogan, who has moved to California.  Chris is now in private practice with agricultural attorney Tim Kelleher.  We are confident that California agriculture is in good hands!   

Our first blog post concerns updates to Ohio’s Agricultural Fertilizer Applicator Certification Program.   The Ohio Department of Agriculture (ODA) recently revised the rules in order to fine-tune the program established in 2014 by Ohio’s legislature. ODA made several changes to the certification, education, and recordkeeping requirements for those who apply agricultural fertilizers to more than 50 acres of land in agricultural production.  The changes will be effective on October 1, 2017.

Updates to the Certification Requirements

Three modifications to the certification requirements will: 1) provide additional clarity about how the certifications apply to employees, 2) adjust the cycle for when the certifications begin and expire, and 3) establish a grace period to obtain a renewal certification after a prior certification has expired.

  1. The new rule clarifies how the requirements apply to employees of businesses and farms, a provision that was unclear under the old rule. The certification rule requires all persons who apply fertilizer for the purpose of agricultural production on more than 50 acres of land to either personally have a certificate issued by the ODA Director, or to act under the instruction and control of a certificate holder. The person acting under the certificate holder must be either a family member of the certificate holder, or “employed by the same business or farm as the certificate holder.”
  2. Instead of starting on June 1 of year one and ending on May 31 of the third year, the certification period for an applicator will run from April 1 of year one until March 31of the third year. The new cycle will avoid mid-season headaches by ensuring that certifications will generally be in place prior to planting season.
  3. The new rule provides a grace period to certificate holders who do not renew their certificates prior to the expiration of their old certificates. If a certificate holder’s certificate expires before they complete a renewal application, the new rule gives the expired certificate holder 180 days after the date of expiration to complete the renewal process. The primary benefit of this grace period is that within the 180 day period, the application will be treated as a renewal application rather than a new application, which requires fewer training hours.

Updates to the Education Requirements

ODA has modified the education requirements in two important ways:

  1. The rule provides an examination option as opposed to requiring all applicants to attend a certain number of hours of agricultural nutrient training. This allows individuals who know what ODA wants them to know about the topic to bypass the hours of training requirement.
  2. The new rule differentiates education requirements for new certification applications and renewal applications. Fewer training hours will be required for renewal applications than new applications.
    • New applicants have the option of either attending at least three hours of agricultural nutrient training or passing an ODA-approved fertilizer examination that demonstrates an “adequate knowledge of the fertilizer training requirements.” New applicants must successfully complete one of these options within the twelve months prior to applying for certification.
    • Those wishing to renew their certifications have the option of either attending one hour of agricultural nutrient training or passing an ODA-approved fertilizer examination. Those who obtain their fertilizer certificate within twelve months of applying for a renewal certificate do not have to complete the renewal education requirements.

Additional Recordkeeping Requirements

The final change to the program rules adds two new recordkeeping requirements. For each application of fertilizer, the fertilizer certificate holder must record:

  • The number of acres on which fertilizer is applied, and
  • The total amount of fertilizer applied, by either weight or volume.

These are in addition to the current requirements, which include maintaining records of:

  • The date, place, and rate of the application of fertilizer,
  • An analysis of the fertilizer applied,
  • The name of the individual who applied the fertilizer,
  • The name of the certificate holder,
  • The type of application method used,
  • The soil and weather conditions at the time of application,
  • The weather forecast for the day following the fertilizer application, and
  • For surface applications, whether the land was frozen and/or snow covered during the fertilizer application.

Each of these must be documented within 24 hours of the application. The existing timing requirements, such as how long the applicator has to submit the information to the certificate holder, have not changed.

For more information, visit ODA’s Agricultural Fertilizer Applicator Certification web page and OSU’s Nutrient Education and Management website. The program rules in Chapter 901:5-4 of the Ohio Administrative Code are here.

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Changes to Ohio’s Lake Erie Commission will impact agriculture and Lake Erie water quality

By Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The Ohio legislature recently enacted a bill expected to enhance Ohio’s efforts to address water quality in Lake Erie.  Senate Bill 2, a far reaching environmental bill, contains several revisions to the Ohio Lake Erie Commission (OLEC) and Ohio’s Lake Erie Protection and Restoration Strategy.

The purpose of OLEC is to advise on the development, implementation, and coordination of Lake Erie programs and policies and to oversee the management of the Lake Erie Protection Fund.   For Ohio agriculture, the most important of S.B. 2’s revisions to OLEC is the expansion of OLEC’s purpose to include “issues related to nutrient-related water quality.”  This change reveals a new focus on nutrient impacts on Lake Erie’s water quality and a resulting charge for OLEC to implement the Ohio EPA’s current plan for reducing phosphorous levels in the Lake by 40% by 2025.

Furthermore, S.B. 2 broadens and strengthens OLEC’s role in coordinating and funding policies, programs and priorities related to Lake Erie.  Coordination with the federal government is encouraged, as is consideration of the efforts of Ohio and other Great Lakes states and countries, as well as any agreements between those states and countries and Ohio.  OLEC must also publish a Lake Erie Protection and Restoration Strategy that describes the commission’s goals and its planned uses for the Lake Erie Protection Fund.  Demonstration projects and cooperative research are now acceptable uses of the fund, in addition to the previously established use of data gathering.

S.B. 2 enhances coordination between OLEC and the Great Lakes Protection Fund (GLPF) board by bringing two members of the GLPF’s board onto OLEC’s board, which currently consists of the directors of Ohio’s EPA, Department of Natural Resources, Department of Health, Department of Agriculture, Department of Transportation and Department of Development, along with five additional members appointed by the governor and approved by the Senate.  S.B. 2 requires the Governor to select the two GLPF board members who will serve on the OLEC board.

Changes in S.B. 2 also call for OLEC to develop public education and outreach programs about their work and issues facing Lake Erie and to expand fundraising efforts to support their programs—namely through the promotion of the sale of Lake Erie license plates.  A number of provisions regard the disposal of construction and demolition debris and dredging in Lake Erie.

The revisions in S.B. 2 are likely to better equip OLEC to carry out strategies for improving Lake Erie’s water quality.  Most notably, the new law will shift some of OLEC’s focus to combating water quality problems associated with nutrient pollution, a change that will surely affect Ohio agriculture.

S.B. 2 is available here in its entirety.  Refer to the first four pages of the bill for the revisions to OLEC.   More information about OLEC is here.

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