Wednesday, February 23, 2011

Manure Run-Off From Frozen or Snow-Covered Ground

Below is an article I wrote for the Indiana Professional Dairy Producer's regional meetings in February 2011.  This article is meant to be informative only and should not be interpreted or construed as legal advice.    

Manure Run-Off From Frozen or Snow-Covered Ground

Land application of manure onto frozen or snow covered ground can present challenges for livestock producers in the spring, when temperatures fluctuate and predicting the weather is difficult.  Such conditions create the potential for manure run-off.  A producer can quickly find themselves facing officials from both the Department of Natural Resources (DNR) and Environmental Management (IDEM) as result of water conditions miles from the farmstead. 

What does the law say about manure run-off?   The Indiana Code prohibits the discharge of “any contaminant or waste” into the environment.  Although “contaminant” and “waste” do not expressly include manure, ask any IDEM inspector and he or she will tell you that IDEM views “manure” and “manure run-off” as contaminants and waste.  Likewise, Indiana’s Confined Feeding Operation (CFO) regulations, which apply to farms with more than 300 cows, prohibit the discharge of contaminated run-off into the waters of the state.  327 I.A.C. 16-3-1.  For larger concentrated animal feeding operations (CAFOs) with more than 700 cows, IDEM’s CAFO regulations prohibit the discharge of manure without a permit, but in every permit issued the discharge of manure into waters of the state is not allowed.  327 I.A.C. 5-1-1.5.  Thus, regardless of the size of farm, water containing manure run-off will be viewed as a water quality violation by DNR and IDEM.

Is there an exception for “agricultural storm water” run-off?  The federal Clean Water Act exempts “agricultural storm water” from regulation.   Agricultural storm water the run-off coming off of a field following precipitation.  Indiana’s CAFO regulations also contain this exemption.  327 IAC 5-4-3.  However, IDEM only applies this exemption to regulated CAFOs, not CFOs or farms that fall under CFO levels.  To take advantage of the exception, the CAFO operator must demonstrate that the manure was applied at proper agronomic rates and any run-off was the result of precipitation.  

Is land application on snow-covered or frozen ground allowed?  For small unregulated farms, land application on snow-covered or frozen ground is generally allowed.  But, if such application results in manure contaminated run-off hours or days later, one can still expect that state officials will be knocking on the door to address any issues.  If you operate a CFO or CAFO, the terms of your CFO approval or CAFO permit will state whether land application on snow covered ground is approved.  Often, such application is not allowed.

IDEM officials are telling me I have caused a manure spill.  What should I do?  Even if you do not believe a spill has occurred, it is important to cooperate with state inspectors and emergency responders in the hours following the incident.  This will pay dividends in the long run when you are faced with potential enforcement action brought by the state.  

I received a “Notice of Violation.”  What are my rights?  If IDEM or DNR believe that you have caused a manure spill and such manure damaged the environment, you may receive a “Notice of Violation.”  A Notice of Violation is for a livestock producer what a speeding ticket is to a motorist, albeit potentially much more serious.  The Notice sets forth the allegations of wrongdoing against the producer and demands certain action be taken to correct the violations, whether that involves the payment of money or operational changes at the farm.  

It is important to remember that a Notice of Violation is not the end of the legal process.  There may be numerous reasons why the Notice of Violation is wrong—(1) the “manure” might have come from another source; (2) the “manure” might have been so dilute as to cause no damage; (3) the manure spill might have been legally permissible, for example, subject to the agricultural storm water exemption; or (4) the penalty IDEM seeks is too harsh.  Fortunately, Indiana law allows farmers the right to challenge the findings of DNR and IDEM by appealing the agencies’ decisions to an administrative law judge.  After a hearing, the judge will review the Notice of Violation and other orders by the state agency determine whether the orders were fair and reasonable.  

Monday, February 7, 2011

Why did I create this blog?

The Janzen family farm in Kansas
I grew up on a farm in South Central Kansas.  After completing my undergraduate degrees at Bethel College in Newton, Kansas, a nice “Hoosier” named Sarah brought me to Indiana, where I eventually enrolled in law school. 

I settled in at the law firm of Plews Shadley Racher & Braun LLP in Indianapolis.  The firm was founded to help industrial companies confront industrial problems, such as environmental contamination and how to pay for cleaning it up.  Now, as the firm has grown, it handles a variety of matters, including business transactions, complex litigation, insurance coverage, and agricultural law issues. 

Since becoming an attorney, I have taken every opportunity to build relationships with Indiana farmers and agribusinesses.  I was a founding member and the chairman of the Indiana State Bar Association’s Agricultural Law Section.  In 2008, I was selected by the Indiana Lt. Governor Becky Skillman to serve on the Indiana Agricultural Regulatory Structure Task Force.  I have frequently spoken at conferences and conventions on agricultural law topics.  Last fall I spoke to the American Agricultural Law Association on the topic of agricultural nuisance.  

Ag law is only one of my practice areas.  I regularly assist buyers and sellers of commercial properties with the sale or purchase of businesses and real estate.  I frequently defend and litigate cases for a variety of clients, from a small Indiana dairy to a large Fortune 500 company. 

I have created this blog to expand my reach to ag and non-ag communities. I will post articles that I come across that I think Indiana’s ag community would like to read.  And I will post some of my own original works, including stories from my agricultural past and educational articles for non-attorneys about how the law works.  If there is something you would like me to post or a legal topic you would like me to write about, please let me know.