Janzen Ag Law Blog

EPA Aerial Surveillance Under Fire

2012-03-16T22:28:00.000-04:00

Brownfield Ag News recently reported that the U.S. Environmental Protection Agency (EPA) had come under scrutiny for conducting aerial surveillance over Midwestern concentrated animal feeding operations (CAFOs). The practice is used by Region 7 (Nebraska, Iowa, Missouri and Kansas). I do not know whether other regions, such as Region 5 (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin) also engage in such activities.

In the Brownfield article, Josh Svaty of EPA defended the use of "fly-overs," as cost-effective, saying: “It’s a very efficient use of taxpayer dollars and it’s also a good way to look at a lot of CAFOs and AFOs all at once."

The problem with this statement is that the EPA has delegated to the states the right to permit CAFOs and enforce the Clean Water Act. The EPA does not need to inspect every CAFO by air, ground, or otherwise. It gave Indiana, Illinois, Nebraska, etc., the right and obligation to do these inspections.

Read the entire Brownfield article here: EPA CAFO Overflights Receive Scrutiny.

At a seminar a couple years ago, I saw photos taken by EPA inspectors during these flights. The pictures did paint a clear picture of feedlot run-off into creeks and streams. Still, I was left with a disturbing feeling that these overflights are wrong. It is one thing for an inspector to show up on a farm, meet the operator, and receive a farm tour. It is an entirely different type of inspection that occurs by air, without the farmer's knowledge or opportunity to explain matters. Aerial surveillance is also overinclusive in that it includes a clear view of a farmer's home, backyard, swimming pool, etc.

But more than anything, aerial surveillance violates privacy. The US Constitution does not contain an express "Right of Privacy," but the Supreme Court has numerous times interpreted The Fourth Amendment as protecting one's home from unreasonable government surveillance. The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

My guess is that most people have no idea that the EPA condones aerial flyovers. If, upon learning this you are troubled, you are not alone.

Why Sound the Alarm for Resistance to Bt Corn?

2012-03-11T21:06:00.000-04:00

Why do those against genetically modified foods (GMOs) sound the alarm whenever some research shows that a pest has developed resistance to the genetic modification? I have often had this thought when reading about "dangers" of glyphosate-resistant weeds appearing in corn, soybean, or sorghum fields. This same thought emerged while recently reading The Salt, NPR's food blog, in an article about the corn rootworm's resistance to "Herculex" trait in biotech (Bt) seed corn: "Insect Experts Issue 'Urgent' Warning on Using Biotech Seeds":

For America's agricultural biotech companies, the corn rootworm is threatening to turn into their worst nightmare.

Last year, we reported that a major insect pest, the corn rootworm, had "found a chink in the armor" of genetically engineered crops. In several different places across the corn belt, the insects have developed resistance to an inserted gene that is supposed to kill them.

Now, in a letter to the U.S. Environmental Protection Agency released this week, 22 of the nation's top experts on corn pests lay out some of the implications of this discovery, and they are potentially profound.

In order to slow down or prevent the spread of resistance, the scientists are calling for big changes in the way that biotech companies, seed dealers and farmers fight this insect. The scientists urge the agency to act "with a sense of some urgency."

(My emphasis added in bold). The actual letter by the "insect experts" does not paint quite such a gloomy picture for Bt corn. Instead, these scientists suggest that more acres without the anti-rootworm trait should be rotated to decrease insect resistance levels. In addition, they suggest that some parts of the United States currently plant Bt corn with rootworm protection prophylactically, even though there is "little or no need for it." This too, can increase rootworm resistance levels. The entire letter is short, very interesting. and can be found here: Memorandum to Open Docket Plant-Incorporated Protectant Insect Resistance Management (IRM),

This brings me back to my point. Unless you are the farmer paying for expensive seed corn that may not be effective against the corn rootworm, why is pest-resistance cause for concern? Corn without insect protection is nothing new.

CDC: More Outbreaks Where Raw Milk is Legal

2012-02-22T13:04:00.000-05:00

A recent bill before the Indiana General Assembly stirred up significant controversy about whether "raw" or "unpasteurized" milk sales should be legal in Indiana. Ultimately, the bill did not make it out of committee, but I understand that the Board of Animal Health (BOAH) will undertake a study to determine whether raw milk can be safely sold in Indiana.

Now the Center for Disease Control ("CDC") has published a report stating that the rate of outbreaks caused by unpasteurized milk and related dairy products was 150 times greater than outbreaks linked to pasteurized milk. The study finds that states that have legalized raw milk sales had more than double the rate of outbreaks than states where it was illegal over a thirteen year period. According to the CDC:

The study included 121 dairy related disease outbreaks, which caused 4,413 illnesses, 239 hospitalizations and three deaths. In 60 percent of the outbreaks (73 outbreaks) state health officials determined raw milk products were the cause. Nearly all of the hospitalizations (200 of 239) were in those sickened in the raw milk outbreaks. These dairy-related outbreaks occurred in 30 states, and 75 percent (55 outbreaks) of the raw milk outbreaks occurred in the 21 states where it was legal to sell raw milk products at the time. The study also reported that seven states changed their laws during the study period.

Dr. Robert Tauxe from the CDC's Division of Foodborne, Waterborne and Environmental Diseases (DFWED) concluded: “This study shows an association between state laws and the number of outbreaks and illnesses from raw milk products.” The study also had some harsh words for parents that feel that the health benefits of raw milk far outweigh the risks to their children:

The study also found that the raw milk product outbreaks led to much more severe illnesses, and disproportionately affected people under age 20. In the raw milk outbreaks with known age breakdowns, 60 percent of patients were younger than age 20, compared to 23 percent in outbreaks from pasteurized products. Children are more likely than adults to get seriously ill from the bacteria in raw milk.

“While some people think that raw milk has more health benefits than pasteurized milk, this study shows that raw milk has great risks, especially for children, who experience more severe illnesses if they get sick,” said study co-author Barbara Mahon, M.D., M.P.H., deputy chief of CDC's DFWED Enteric Diseases Epidemiology Branch. “Parents who have lived through the experience of watching their child fight for their life after drinking raw milk now say that it's just not worth the risk.”

I have a lot of respect for the CDC and the work it does. There is little doubt that BOAH does as well, and if authorized to study whether Indiana can safely legalize raw milk sales, I am sure this study will be one of the many items discussed.

To view the study, please visit http://wwwnc.cdc.gov/eid/ahead-of-print/article/18/3/11-1370_intro.htm

To view the press release regarding the study, please visit: http://www.cdc.gov/media/releases/2012/p0221_raw_milk_outbreak.html

$1.5 Million Fine Levied Against Hog Farm for Violating the Clean Water Act

2012-02-16T14:19:00.001-05:00

The Department of Justice issued a press release earlier this week:

WASHINGTON – Freedman Farms Inc. was sentenced today in federal court to five years probation and ordered to pay $1.5 million in fines, restitution and community service payments for violating the Clean Water Act when they discharged hog waste into a stream that leads to the Waccamaw River, announced the Department of Justice’s Environment and Natural Resources Division and the U.S. Attorney’s Office for the Eastern District of North Carolina.

William B. Freedman, president of Freedman Farms, was sentenced to six months in prison to be followed by six months of home confinement.

Freedman Farms was sentenced to pay a $500,000 criminal fine and $925,000 in restitution. The judge will hold a status conference in 30 days to determine the scope of restitution to compensate for or repair lost or injured resources that resulted from these violations. In addition, a community service payment of $75,000 will be paid directly to the Southern Environmental Enforcement Network (SEEN), one of four U.S. regional environmental enforcement associations established to train environmental enforcement professionals. SEEN is to use the funds for funding environmental projects designed to preserve and restore waters in the Eastern District of North Carolina.

Continue reading here.

As an outsider, I certainly do not know all of the facts surrounding this case, and therefore cannot comment as to culpability of Freedman Farms or the correctness of the result. Still, a seven figure fine against a farm for violating the Clean Water Act is remarkable--the highest of which I have ever heard. What's troubling about the press release is the indictment of all CAFOs, as if they are ready to pollute--but for the EPA's keeping them in check:

“Concentrated Animal Feeding Operations (CAFOs), like Freedman Farms, are an EPA enforcement priority because manure, if not properly controlled, can contaminate both surface waters and ground waters that may be used as drinking water sources and harm fish and other aquatic species,” said Maureen O'Mara, Special Agent-in-Charge of EPA's criminal enforcement office in Atlanta. “In this case, hog wastes flowed through sensitive wetlands, posing a risk to water and wildlife. Today's sentences send a clear message to CAFO's and their owners that if you disregard the law, you will be prosecuted.”

Most people would be surprised to learn that CAFO operators--at least those I work with--actually know the law better than most smaller, unregulated livestock farms. They do not need the EPA to make an example out of another farm to make them follow the law.

Egg Producer Agreement Shows the Value in Mediation

2012-02-13T13:21:00.001-05:00

A recent NPR story provided a good synopsis of how the United Egg Producers (United Egg) and the Humane Society of the United States (HSUS) came together to resolve their differences. Rather than spend millions of dollars fighting years of litigation over animal welfare, United Egg and HSUS signed an agreement that requires egg producers to increase cage sizes over next 10-15 years, and in exchange, the HSUS will retract its litigation talons (and likely sink them into something else).

As explained on NPR, the dispute between HSUS and United Egg was years in the making:

[Wayne Pacelle, president of HSUS,] has been among that industry's fiercest critics. He took aim, specifically, at the industry's standard practice of crowding chickens into long lines of wire cages, with hundreds of thousands of birds in a single chicken house.

"I said that these factory farms were cruel and inhumane, no question about that," he says. "We're passionate about this issue. We want to see changes within this industry."

This did not stop Gene Gregory, president of United Egg from sending Mr. Pacelle a request “to talk.” The result:

Within a few months, the two sides came up with a compromise. They agreed to jointly lobby Congress for a law that would allow farmers to keep their chickens in cages, but the chickens would get twice as much space, plus perches and "nest boxes" where they could lay their eggs.

The changes will be phase in over the next 15 years. The settlement now moves to Washington, D.C., where it must be approved due to antitrust concerns.

This story reminds me of the many mediations I’ve attended over the years. Mediation is a purely voluntary process, where litigants sit across the table from each other and, with the help of a neutral third party mediator, attempt to reach a compromise. Often times, as with the HSUS and United Egg agreement, the result is something that makes both parties equally unhappy, but as a result, a deal is struck. The alternative, potentially years of litigation, expensive discovery and trial preparation, and the possibility that a party might ultimately get nothing or lose everything, makes a compromise more desirable to both sides. The process is not always pretty, but it often works.

Read or listen to the entire NPR story here: How Two Bitter Adversaries Hatched a Plan to Change the Egg Business.

The United Egg and HSUS agreement can be found here: Historic Agreement.

Toxicologist Responds to Atrazine's Critics

2012-02-05T13:33:00.003-05:00

I recently attended a seminar with Tim Pastoor, a toxicologist from Syngenta and a leading expert on atrazine (also simazine and propazine), a popular farm herbicide used to control weeds in corn and sorghum. This was particularly interesting to me, having spent many days as a young farm-hand spraying atrazine on row-crop acres.

Atrazine has come under fire in recent years from environmental groups, who have lobbied the EPA to restrict atrazine’s usage, claiming it is harmful to humans and amphibians and has led to groundwater and surface water pollution. Dr. Pastoor knows these complaints well, but says the science does not back them up:

These claims are baseless and wrong. The EPA just completed a 12-year evaluation of the corn herbicide atrazine in 2006 and concluded that it can be reregistered for use. The EPA's painstakingly detailed review of more than 6,000 scientific studies led it to state very clearly that atrazine poses "no harm that would result to the general U.S. population, infants, children or other ... consumers."

One would think such a thorough review with this much data and with so many qualified scientists examining each aspect of atrazine's safety would be enough. But not for the agenda-driven activist organizations that just don't like EPA's conclusions. Political pressure by these groups has pushed the EPA to announce yet another "comprehensive" reevaluation of atrazine.

Dr. Pastoor believes another reevaluation of atrazine is unnecessary. He explained that atrazine has been safely used for over 50 years and in more than 60 countries. Read more about Dr. Pastoor's comments in the Winona Daily News: Atrazine is Proven Safe, Despite Critics' Assertions.

Still, atrazine has its critics. A Google search will pull up hundreds of articles cautioning people to be wary of atrazine in their drinking water and the negative health effects. The New York Times, for example, published a story: Debating How Much Weed Killer Is Safe in Your Water Glass, where it discussed both sides of the controversy surrounding atrazine.

There is a lot of information available for interested persons. If you want to know more, I suggest starting with EPA’s regulatory webpage on atrazine, which addresses some of the claims that the herbicide is harmful to humans and amphibians. The atrazine website also responds to the various reports and studies that claim that the herbicide is unsafe.

Syngenta is currently fighting a class-action lawsuit involving claims by homeowners in Holiday Shores, Illinois, that atrazine contaminated their water. Stay tuned for more posts about atrazine and the Holiday Shores litigation in the future.

Raw Milk Debate Curdles Into Legislative Amendment

2012-01-30T22:46:00.000-05:00

An amendment to Indiana Senate Bill 398 (SB398) attempts to legalize sales of "raw" or "unpasteurized" milk in Indiana. (See prior post: Are Raw Milk Sales Legal in Indiana?) The bill specifically allows a dairy producer to sell raw milk directly from the farm if four conditions are met:

The milk producer is registered with the state Board of Animal Health (BOAH).
For each sale, either the milk producer or the consumer provides a sanitary container for the milk that has been prepared in a sanitary manner and the container is filled in a sanitary manner.
At the place where the milk is sold, the milk producer displays a sign that is easy for a consumer to read and that states, "Raw Milk products are sold here. Raw Milk products are not pasteurized."
The raw milk or raw milk product is prominently labeled, in at least a one-half (1/2) inch font, "This product contains Raw Milk. Consume at your own risk.".

There are a number of legal issue I see arising from this amendment. First, the terms "sanitary container" or "sanitary manner" are undefined. What exactly "sanitary" means to one farmer may not be the same to another. (But Grade A regulated dairies know exactly what sanitary means because unsanitary milk is rejected when tested).

Second, the disclaimer that "Raw Milk products are not pasteurized" seems inadequate to me to explain the risks associated with drinking raw milk to a consumer. Many consumers who purchase raw milk are well informed and know the risks, but many may simply buy raw milk having heard it's healthier (whether that's true or not) and assume that "healthier" also means "safe." Whether you are fan of government regulation or not, few can argue that as a result of the USDA, FDA, BOAH, and industry self-regulation, the United States has one of the safest food supplies in the world.

Finally, it is worth noting that federal law requires the pasteurization of a milk and milk products sold for human consumption. 21 C.F.R. § 1240.61. If a person sells raw milk that milk is transported in "interstate commerce," the dairy farmer faces federal prosecution. And yes, the FDA does go after farmers that violate this law: FDA Files Suit Against Pennsylvania Dairy for Selling Raw Milk.

Contact your Indiana state representative and let them know what you think of this amendment.

Update, February 9, 2012: SB398 did not pass out of the Indiana Senate and the raw milk issue, at least in legislative terms, appears to be dead for this year.

Ethanol News From Across the Hall

2012-01-26T18:56:00.001-05:00

Jeff Featherstun, an attorney at our firm, frequently writes about environmental issues on his blog, Outside of My Environment. This week he tackled two stories involving ethanol that will be of interest to readers of this blog. First, California's attempt to discriminate against "Midwest" corn ethanol in favor of "California" ethanol was struck down as unconstitutional:

A federal judge recently struck down California’s program to reduce the “carbon intensity” of motor fuels, citing constitutional “interstate commerce” concerns that it discriminates against ethanol. The case was brought by groups that have an interest in corn ethanol, including corn growers, users, merchants and marketers of distillers grain (a by-product created during the corn-to-ethanol process that is fed to livestock), producers of corn ethanol, and importers of ethanol into California from other states.

Second, Jeff explained that nationally, ethanol subsidies were coming to an end:

Finally, a word on ethanol. On December 31, 2011, the tax credit for ethanol expired, ending an era in which the federal government provided more than $20 billion in subsidies for use of the product. The tax break, created more than 30 years ago, had long seemed untouchable. But in 2011, fiscal conservatives – who rejected it as a symbol of corporate welfare – joined liberal environmentalists – who disparaged ethanol’s carbon dioxide footprint and effect on world food prices for the poor – to kill it.

Whatever you think about the debate over government efforts to promote ethanol, the California law was something different. It discriminated against it on environmental grounds. Striking down the law was not only constitutionally required, it was good public and economic policy.

Continue reading the entire post: California Cap and Trade Capped.

Did President Obama Read the Janzen Ag Law Blog?

2012-01-24T22:22:00.000-05:00

Well, maybe. Last March, after much controversy swirled about whether the EPA was going to regulate milk containers under its Oil Spill Prevention, Control and Countermeasure rule (SPCC), I paraphrased EPA Administrator Lisa Jackson's response as: "No need to cry over spilled milk." The EPA eventually exempted milk from the SPCC rule, and dairy farmers breathed a sigh of relief.

Tonight, in the State of Union address, President Barack Obama essentially said the same thing:

There is no question that some regulations are outdated, unnecessary, or too costly. In fact, I've approved fewer regulations in the first three years of my presidency than my Republican predecessor did in his. I've ordered every federal agency to eliminate rules that don't make sense. We've already announced over 500 reforms, and just a fraction of them will save business and citizens more than $10 billion over the next five years. We got rid of one rule from 40 years ago that could have forced some dairy farmers to spend $10,000 a year proving that they could contain a spill- because milk was somehow classified as an oil. With a rule like that, I guess it was worth crying over spilled milk.

I'm confident a farmer can contain a milk spill without a federal agency looking over his shoulder. . . .

President Obama, I hope that you are reading this blog. There are plenty of other agricultural regulations that could use the same common sense approach applied to the "spilled milk" issue. See, for example, the Department of Labor's proposed child labor restrictions.

Bill Gives Farmers a Legal Tool to Stop Groundless Nuisance Suits

2012-01-23T19:32:00.000-05:00

Today's Indianapolis Star ("Protection Bill Leaves a Bad Smell") contained an editorial opposing HB 1091, a bill before the Indiana General Assembly that would allow courts to award attorneys' fees to farmers that successfully defend "frivolous, maliciously initiated, or groundless" nuisance suits. The Star's editorial mistakenly described the bill, "under which agricultural operations, such as large confined livestock complexes, would be guaranteed payment of their legal fees if found to be victims of nuisance lawsuits." (Emphasis added).

As the bill is currently written, the Star's statement is wrong. Only if the farm prevails in the lawsuit and the suit is determined by a court to be "frivolous, maliciously initiated, or groundless," would the court award attorneys' fees. This is not a guaranty.

Nevertheless, some anti-ag groups are already lining up to oppose the bill. Kim Ferraro of the Hoosier Environmental Counsel explained in Nuvo: "Given the significant hurdles already in place that limit the ability of CAFO communities to protect themselves,this is probably the most repulsive, underhanded and unjust piece of proposed legislation I've ever seen. . . . No other industry is afforded these protections (included in the proposed bill) ... It seems the purpose is to have a chilling effect."

Farm group industry leaders explained why the bill is necessary. Justin Schneider, a staff attorney from Indiana Farm Bureau, testified that was bill was necessary because there have been several cases where judges declined to award court costs to successful defendants. Michael Platt, executive director of the Indiana Pork Producers, testified that he is seeing more attorneys file suits against CAFOS with the express purpose of delaying and disrupting industry expansion.

From my standpoint, Indiana Farm Bureau and Indiana Pork have it right. A number of lawsuits have been filed in the last few years against Indiana farms, often funded by out-of-state attorneys or in state anti-farm groups. Nuisance suits dissuade farms from expanding. HB 1091 seeks to address these problems.

Read the text of HB 1091 for yourself: HB 1091.

Sackett v. EPA: Quotes from oral argument

2012-01-12T21:07:00.002-05:00

Any attorney who has argued in open court will tell you that you cannot always predict how a court will rule based upon the questions asked from the bench. Still, the inquiry can tell you a lot about what a judge is thinking and what issues he or she views as most important. Sackett v. EPA, the recent wetlands case before the United State Supreme Court, provided its observers with a lot of insight into what issues are important to the justices. Here are few of the more interesting quotes from the oral argument: (Mr. Stewart = EPA's counsel):

Justice Alito asked: “Mr. Stewart, if you related the facts of this case as they come to usto an ordinary homeowner, don't you think most ordinary homeowners would saythis kind of thing can't happen in the United States? You don't -- you buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can't build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to. You have to turn over to us all sorts of documents, and for every day that you don't do all this you are accumulating a potential fine of $75,000. And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.

ChiefJustice Roberts: ”That's what you would do? You would say, I don't thinkthere are wetlands on my property but EPA does, so I'm going to take out allthe fill, I'm going to plant herbaceous trees or whatever it is, and I willworry about whether to -- that way, I'll just do what the government tells me Ishould do.”

Justice Breyer: “for 75 years the courts haveinterpreted statutes with an eye towards permitting judicial review, not theopposite. And yet -- so here you are saying that this statute that says nothingabout it precludes review, and then the second thing you say is that this isn'tfinal. So I read the order. It looks like about as final a thing as I have everseen.”

In response to Mr. Stewart's suggestion that the EPA might alter its wetlands determination during litigation, Justice Alito responded: “Well, that makes the EPA's conduct here even more outrageous. We think now that this is -- these arewetlands that -- that qualify, so we're going to hit you with this complianceorder, but, you know, when we look into it more thoroughly in the future, wemight change our mind?”

To the read the full transcript, click here.

Sackett v. EPA: The Supreme Court Reviews the EPA's Ability to Regulate Wetlands

2012-01-09T13:30:00.000-05:00

Today the United States Supreme Court will hear oral argument in Sackett v. EPA, a case that may fundamentally alter the scope of the EPA’s ability to enforce the Clean Water Act. The Sacketts’ counsel describes the issue as the EPA’s overreaching net:

Representative Photo

The Clean Water Act casts a nationwide regulatory net that snags individual citizens doing ordinary, everyday activities. Unlike other environmental statutes, the Clean Water Act is not directed toward a certain field of activity where those involved would be expected to know the applicable regulations. Any citizen engaged in a range of activities may run afoul of the Act. The Clean Water Act’s reach is extremely broad, requiring a permit for the discharge of “pollutants” from a “point source” into the “waters of the United States,” which phrase has been interpreted by regulation to include “wetlands.”

Wetlands are themselves defined by complex criteria—including soil type, vegetation, and hydrology—which defy consistent application and are not apparent to the average citizen. The government finds regulable “wetlands” even on land that appears to be totally dry.

The plaintiffs were ordinary citizens that purchased a residential lot and began to develop it for construction of their home, only to receive a compliance order from the EPA:

The order charges them with violating the Clean Water Act by placing fill material on their lot. . . First, the order enjoins them from the only authorized use of the property under local law. . . The order, as subsequently amended, requires them, at their own expense, to “remove all unauthorized fill material” and move it to “a location approved by [an] EPA representative,” as well as to prepare for EPA “photographs of [s]ite conditions prior to and following compliance” with the order.

Even after completion of the fill removal, the compliance order continues to control the use of the Sacketts’ property. The order then requires them to plant certain native plants on their property.

Most troubling for the Sacketts, though, is that failure to abide by the order’s terms can result in civil penalties up to $37,500 per day.

The Sacketts were denied judicial review before the local district court, where they alleged the “wetlands” were not under the Clean Water Act’s (and thus the EPA’s) jurisdiction. The district court dismissed complaint, holding that so-called “pre-enforcement” orders by the EPA were not reviewable. The Sacketts’ only choice was to obey the order and essentially lose all use of their land, or ignore the order and potentially be fined. Instead, they took their case to the U.S. Supreme Court.

The Sacketts have asserted that the order violates their due process rights. Various other groups have also filed briefs in the case, including American Farm Bureau the National Association of Manufacturers. Stay turned for the results.

The Debate on Labeling GM Food

2012-01-04T09:25:00.000-05:00

The Diane Rehm Show on NPR recently featured a debate on whether companies should be required to label genetically modified food (GM food or GMOs) on their packaging. This episode was particularly interesting to me because one of the panelists was Thomas P. Redick, principal at the Global Environmental Ethics Counsel and general counsel for the United Soybean Board. I know Mr. Redick as he and I are both officers on the American Bar Association's Agricultural Management Committee.

Gary Hirshberg, president of Stonyfield Farms, was also on the program. He stated:

Polls show that Americans overwhelmingly want labeling. Thomson Reuters, in a poll actually commissioned by NPR a year ago, showed over a sample of 3,000, showed 93 percent of consumers desiring foods to be labeled. Lake Associates, Consumers Union, MSNBC, there's endless polls. All of the numbers come in at well over 90 percent. This is not a small debatable number.

Mr. Redick reponded that such polls may not be as clear cut as suggested:

[T]here's a good group called IFIC International Food Information Council that did a survey that's not designed to get a result. I mean, in these surveys that Gary mentioned they say, wouldn't you like to label gm foods, and that's a very leading question. If you ask the question, what would you like to see on a label that's not already there, genetic modification is very low on the list. So we view the survey as designed to get a result.

Mr. Redick also suggested that requiring labeling of GMOs would inevitably lead to higher costs for consumers:

And because companies would then have to change the labels and then they would voluntarily source non-GM inputs to avoid the label, it will drive more folks in the chain of, say, corn chips to purchase a non-GMO corn. And then, the non-GMO corn goes up in price because of demand. That's certainly the case in any nations they've implemented labeling.

Well, there's over 40 nations actually that have labeling laws. The Institute for -- IFPR, International Food Policy Research did a study that showed not many of these are actually being implemented. Where they are being implemented, significant costs are incurred and it raises the price for those who can least afford to pay for the food.

Continued reading or listen to the complete discussion at The Diane Rehm Show website.

Phosphorus: Fertilizer or Nemesis?

2011-12-22T12:54:00.001-05:00

I recently did an interview for the Indiana Lawyer discussing the various ways in which phosphorus regulations have arisen in the past few years. While farmers view phosphorus as a beneficial nutrient for crop production, some environmental groups worry that there can be too much of a good thing. Reporter Jennifer Montgomery writes:

Fishing, boating and swimming are popular summer pastimes in Indiana, but increasingly, Hoosiers looking for a relaxing weekend at the lake are being warned to avoid the water altogether due to pollution.

The U.S. Environmental Protection Agency shows that in 2010, phosphorus was the cause of impairment for 7,023 acres of Indiana’s lakes, reservoirs and ponds. In excess, the nutrient can cause thick, foul-smelling mats of algae called algal blooms.

Phosphorus can come from a variety of sources, including fertilizers, and some environmentalists say that regulating the use of phosphorus-fertilizers will reduce its presence in waters. But so far, efforts to institute laws restricting the use of phosphorus have generated little support.

Continue reading the full story at the Indiana Lawyer: Opinions Divided on the Need for Phosphorus Regulation

Phosphorus will be a big topic for Indiana agriculture in 2012. New confined feeding operation regulations go into effect on July 1, 2012, which will require some large livestock farms to start restricting manure application rates based upon a field's existing phosphorus content. For other smaller farms, the effects of the new phosphorus restrictions will phase in over the next six years. More about this topic in a previous post: New Confined Feeding Operations Approved.

Posted by Todd Janzen

Farmland Prices: How High Will They Go?

2011-12-12T21:38:00.000-05:00

I am often asked: What is the value of good Indiana farmland? The answer, of course, depends on the location, soil type, drainage, row crop versus pasture land, and other factors farmers know well. But I think its safe to say that the value of Indiana farmland has been going steadily up. I've personally heard of good corn and soybean farmland in Indiana selling for $10,000 per acre.

Brandon Smith at WTIU states that farmland values have "increased dramatically" over the last year. He reports that the Federal Reserve Bank of Chicago shows a 25% increase in Midwest agricultural land values over the last year and a 29% increase in Indiana. According to the Federal Reserve, that's the largest gain in more than 30 years.

Last Wednesday, the Des Moines Register reported that farmland in Iowa sold for more than $20,000 per acre, a state record. This has prompted many economists to question how high prices will go. One expert in the the Wall Street Journal cautioned:

A bubble appears to be building up and there is a cause for caution because returns are getting squeezed, said Daniel Hough, agricultural product specialist with Macquarie, on the sidelines of an agriculture conference.

There is no justification for U.S. farmland prices to be three to four times higher than land where the same crop is planted in Brazil, or 30 times the corresponding prices in Russia, he said.

Citing data from the Federal Reserve Bank of Chicago, Mr. Hough said that in the year to June 30 there was an average 17% increase in farmland prices across Indiana, Illinois, Iowa, Michigan and Wisconsin, the biggest rate of increase for any year since 1977. During 2005-2010, the price of farmland climbed as much as 70% in some Midwest states, according to the U.S. Department of Agriculture.

Other experts are less pessimistic. R.D. Schrader of Schrader Real Estate is "bullish" in the long term.

As in any market, land values are being determined by supply and demand, Schrader said, with the increasing global appetite for food, the demand for renewable fuels driving corn prices to new highs and a shrinking value of the U.S. dollar driving sales.

Read the rest of Mr. Schrader's predictions together with others in the High Plains Journal.

Post by Todd Janzen

Manure a "hazardous substance"?

2011-12-07T19:52:00.001-05:00

Brianna Schroeder writes over on The Monitoring Well blog that there are proposed changes to federal CERCLA regulations to make certain that "manure" is not considered a hazardous substance under EPA regulations:

Several federal legislators recently proposed an amendment to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) to exclude manure from the definition of "hazardous substance" and "pollutant or contaminant" for purposes of CERCLA. H. R. 2997 defines "manure" to mean: (1) digestive emissions, feces, urine, urea and other excrement from livestock; (2) any associated bedding, compost, raw materials or other materials commingled with such excrement from livestock; (3) any process water associated with such items; and (4) any byproducts, constituents, or substances contained in, or originating from, such items or any emissions relating to such items. On September 26, 2011, the bill was referred to the House Subcommittee on Environment and the Economy. The full text of the bill is available here. A related bill, S. 1729 was introduced in the Senate and referred to the Senate Committee on Environment and Public Works on October 18, 2011. Additional information on the Senate bill can be viewed here.

Let's hope this legislation succeeds. The last thing any livestock farmer needs is to learn that the EPA considers "manure" to be a hazardous substance.

Soybean Processor to Pay $96,588 Penalty to EPA

2011-12-04T18:13:00.001-05:00

A soybean processing facility in Iowa, Ag Processing, Inc., has agreed to pay a $96,588 civil penalty as a result of its failure to develop and implement a Facility Response Plan.

According to the EPA press release, inspections revealed storage capacity for more than one million gallons of fuel oil and/or soy oil was located at the facility, but no Facility Response Plan was in place. The facility was located within 300 feet of a perennial creek, which flows into two small lakes and eventually the Winnebago River.

A Facility Response Plan is required under the Clean Water Act for certain facilities. Under EPA regulations, a Facility Response Plan is deemed necessary to demonstrate a facilities preparedness to respond to a worst case oil discharge. To learn more about Facility Response Plans, click here: EPA Facility Response Plan Rule.

A Dutch Dairywoman's Determination

2011-11-29T22:15:00.001-05:00

The Progressive Dairyman recently wrote an article featuring Leontien VandeLaar, a Dutch immigrant and dairy farmer in Indiana. Leontien has an amazing story:

In three years, Leontien VandeLaar moved to a new country, started a 2,000-cow dairy, was married three times (to the same man) and began an ongoing battle with skin cancer.

She describes herself as “determined” and even “stubborn,” but that wouldn’t be most people’s first impression of her.

The blonde-haired Holland native has a friendly smile, a bubbly personality and a well-known soft spot for the special men in her life – her husband and a black stallion horse with its own unique story. . .

Continue reading: Chasing a Dream: One Woman's Fight for a Dairy Farm Life.

Leontien's daily farm life is chronicled in her blog: Four Leaf Clover Tales.

Reaction to Indiana's new CAFO and CFO Rules

2011-11-28T10:12:00.001-05:00

"Mixed" is how I described the reaction to the IndianaDepartment of Environmental Management's new regulations for ConfinedFeeding Operations ("CFOs") and ConcentratedAnimal Feeding Operations ("CAFOs") in a recent interview with HoosierAg Today. Since I made that statement, various newspapers and othergroups have run headlines describing the CFO and CAFO regulations in variouslights. I've collected links to some of those stories here.

The AssociatedPress ran an article that was headlined by the Chicago Tribune as: Activists: New Indiana livestock rules insufficient:

Stateofficials contend the updated rules, which replace restrictions approved sixyears ago, will provide significant new protections for ground and surfacewaters.

Those include barring livestock farmers from spreading manureonto frozen or snow-covered fields as fertilizer, a practice that can taintnearby waterways if rain or snowmelt washes the manure off before it's absorbedinto the ground.

Butactivists said that aside from a handful of improvements, the revised rulesfail to adequately protect water quality, public health and communities nearbig livestock farms -- the largest of which can generate as much excrement as atown.

The same article appeared in the Louisville Courier Journal undera slightly more negative headline: Activists: New Indiana Livestock Rules Stink.

The Fort WayneJournal Gazette ran an article titled: Crackdown on CAFOs.

Rules thatIndianaregulators adopted last week to govern large livestock operations were awelcome step toward protecting water quality from careless operators. Butenvironmental advocates are raising legitimate concerns that the rules don’t gofar enough.

TheHoosier Environmental Council, Sierra Club Hoosier Chapter, Indiana CAFO Watchand Citizens Action Coalition sent out a joint news release about thoseconcerns. The groups were specifically worried that setback requirements werenot stringent enough and that the whole process lacks the transparency neededto keep the public informed.

Indiana Farm Bureau issueda less editorial press release: Indiana Confined Feeding Rules Amended. In therelease, staff attorney Justin Schneider wrote:

A lot of work went into shaping these rules so that they would beprotective of the environment and human health while not unduly burdening livestockand poultry producers.

Posted by Todd Janzen

Indiana Updates Rules for CAFOs

2011-11-15T21:18:00.001-05:00

The Indiana Department of Environmental Management (IDEM) has updated its environmental rules for concentrated animal feeding operations (CAFOs). On November 9, 2011, the Water Pollution Control Board passed revisions to the existing National Pollutant Discharge Elimination System (NPDES) permitting program which regulates Indiana's largest livestock farms, or CAFOs.

The changes include the removal of the requirement that any large animal feeding operation that "proposes to discharge" pollutants into waters of the state--but does not actually discharge--obtain an NPDES permit. The changes were necessitated by the the 5^th Circuit Court of Appeals' ruling earlier this year, National Pork Producers Council v. U.S. E.P.A. That case held that the "propose to discharge" threshold violated the Clean Water Act.

As a result of the National Pork case and IDEM's new NPDES regulations, the next few years will see many of Indiana's largest livestock farms leave the CAFO program and enter the state's confined feeding operation (CFO) program. The impact of those changes can be found in my earlier post: New Confined Feeding Operation Regulations Approved For Indiana Livestock and Poultry Farmers

New Confined Feeding Operation Regulations Approved For Indiana Livestock and Poultry Farmers

2011-11-09T20:25:00.000-05:00

The Indiana Department of Environmental Management (IDEM) has completed the rulemaking process for the promulgation of new confined feeding operation (CFO) regulations. Today, the Water Pollution Control Board approved new CFO regulations, which will go into effect on July 1, 2012.

The new regulations contain a number of changes to how Indiana's medium and large livestock farms will be operated. Of particular importance are three new provisions that will significantly change daily operations for many of Indiana's livestock producers:

A rare sight? A manure spreader
on snowy winter day.

1. The new regulations prohibit spreading of manure on frozen or snow covered ground for CAFOs, Indiana's largest livestock farms. Smaller livestock farms--called CFOs in Indiana--can land apply to snow covered or frozen ground only under specific conditions, such as emergencies. There is also an exception for older CFOs that were permitted with only 120 days of manure storage capacity, unlike the 180 days that is required now.

2. In the past, land application rates were determined based upon the nitrogen needs of the next planted crop. The new CFO regulations limit application based upon phosphorus content. Livestock farms must monitor phosphorus levels on cropland to assure that it does not exceed 200 parts per million (ppm). For new operations, these requirements go into effect immediately. For existing CFO operations, there is a gradual phase in period.

3. IDEM currently has the authority to require groundwater monitoring for large CAFOs. But IDEM has seldom required farms to monitor groundwater in the past. The new CFO regulations contain specific provisions that allow IDEM to require groundwater monitoring. Sampling results must be periodically reported to IDEM. In addition, farmers must self report if they determine that their groundwater samples show a "statistically significant" deviation from prior samples.

Most of Indiana's large livestock farms, or CAFOs, will eventually be covered by the new CFO regulations as result of the Fifth Circuit Court of Appeal's decision in National Pork Producers Council v. EPA (discussed in previous blog post: click here). Therefore, the new regulations will have a far reach, applying to almost 2000 of Indiana's livestock farms.

By Todd Janzen

Are CAFOs to Blame for Polluting Our Lakes?

2011-11-08T21:28:00.000-05:00

Today's Indianapolis Star (Indy Star) contained a story about algae blooms in Indianapolis' Geist Reservoir. According to what the Indy Star deemed a "nonscientific assessment" conducted by the Environmental Law and Policy Center, Geist Reservoir is contaminated with "phosphorus runoff, which comes from fertilizer, farm sediments, pet waste and septic-system leaks and causes the algae blooms." But are CAFOs, or what many derogatorily call "factory farms," to blame?

Many good-intentioned water conservation groups are quick to point the finger at CAFOs as the greatest threat to state and national waters. As explained in today's Indy Star:

"There's a host of problems that should be addressed," said Peter Gray, a spokesman for the Environmental Law & Policy Center. "You would hope (public officials) would take the lead and try to protect the resources of their state."
Gray's organization said Indiana's political leaders have largely failed to protect clean water and called on the state to provide "solutions like statewide pollution limits for phosphorus and better water quality standards for factory farms."

What Mr. Gray may not realize is that CAFOs are already the most highly regulated farms in Indiana. CAFOs are subject to the federal Clean Water Act and are required to regulate the amount of phosphorus placed onto farmland so that it is commensurate with amount utilized by the next growing crop. Smaller farms in Indiana--Indiana's confined animal feeding operations (CFO)--will soon be required to regulate the amount of phosphorus they place on farmland too. Indiana's Water Pollution Control Board is set to promulgate new regulations on November 9, 2011. These regulations will limit phosphorus according to the Natural Resources Conservation Service (NRCS) guidelines.

Moreover, Indiana's CAFOs are designed to operate as zero discharge operations. Real factories, on the other hand, can obtain permits under the Clean Water Act that allow for discharges into state waters. And the potential penalties for CAFOs violating state and federal water regulations are harsh--up to $25,000 per day.

It's too easy to blame CAFOs for polluting our lakes. But don't say that CAFOs are not well regulated, because that is, from this ag lawyer's point of view, just not true.

The Indy Star's article can be found here.
The new confined feeding operation regulations can be found here.
The Environmental Law and Policy Center's CAFO report can be found here.

New Child Labor Restrictions Will Impact Farm Life

2011-10-31T22:13:00.002-04:00

I had a relatively safe childhood. No broken bones, no separated clavicles, no missing fingers or toes. My worst injury occurred when I sliced into my thumb while using a handsaw at camp. Still, not all farm kids avoid minor and serious injuries because, let's face it, there are certain risks that come with working around livestock and heavy machinery--whether you are an adult, adolescent, or child.

Boys bringing home hay in the 1970s.

The U.S. Department of Labor believes that farm children need more protection from the dangers of farm work. The Department has proposed revising current child labor regulations. As explained by Farm Journal, childhood injuries have always been a risk associated with farm life.

The proposed changes prohibit children under the age of 18 from working with animals and in pesticide handling, timber operations, manure pits and storage bins. They also prohibit youths at grain elevators, grain bins, silos, feedlots, stockyards, livestock exchanges and livestock auctions.

Children under the age of 16 would be prohibited from operating most power-driven equipment as well as connecting or disconnecting an implement or any part of the machine. All youths would be prohibited from using electronic devices while operating equipment as well.

The proposed revisions do not apply to farm owners’ children, but they do apply to other young relatives.

These revisions mark the first time the Fair Labor Standards Act has been updated since 1970. The changes have been on the horizon for months and were announced in September. Their release came shortly after the agriculture community was deeply saddened by the loss of two girls in an irrigation accident in Illinois and the severe injury of two boys in Oklahoma from a grain auger accident.

The new regulations can be found in the Federal Register. You are invited to submit comments on these regulations directly to the Department of Labor at http://www.regulations.gov or U.S. mail:

Wage and Hour Division

U.S. Department of Labor, Room S-3502

200 Constitution Avenue, NW.

Washington, DC 20210

Working on a farm has always come with an element of danger, but does this danger warrant more strict child labor regulations? Voice your concerns by letting the U.S. Department of Labor know how you feel about these proposed changes. Comments are due by December 1, 2011.

By Todd J. Janzen

EPA Proposes New Reporting Rule for CAFOs

2011-10-21T18:40:00.002-04:00

The Environmental Protection Agency (EPA) isproposing a new rule that would require concentrated animal feeding operations(CAFOs) to submit certain operational information to the EPA. Such information would include the size ofthe farm and the total available land application area for the CAFO. The reporting requirements are the result ofa settlement agreement reached between the EPA and the Natural ResourcesDefense Council, Waterkeeper Alliance, and the Sierra Club.

The proposed rule is unique in that itproposes two different options for how CAFOs would be required tosubmit the information. Under the firstoption, all CAFOs, regardless of size, would be required to submit therequested information to the EPA. The EPA estimates that approximately 20,000CAFOs would be subject to reporting under this option. Individual states cansubmit the information directly to the EPA if the information has already beengathered under a state regulatory program. If the state does not have the information or chooses not to submit it,the EPA will request that individual CAFOs respond directly to the request.

Under the second option, only those CAFOs in focus watersheds that have water qualityconcerns would be required to report information to the EPA. A focus watershed is would be identified on acase-by-case basis based upon: vulnerable ecosystems, proximity of drinkingwater source supply, watersheds with high recreational value, high densities ofanimals, patterns of vulnerable soils, and other factors.

The EPA is requesting public comment on bothoptions as well as alternative approaches to gather information. The proposedrule will be open for public comment for 60 days following publication in theFederal Register, which occurred today. The EPA plans to take final action onthis proposal by July 2012.

By Todd J. Janzen

Dust in the Wind: The EPA's Regulation of Farm Dust

2011-10-17T21:34:00.001-04:00

This past year there has been much speculation about whether the Environmental Protection Agency (EPA) will regulate "dust" blowing off of America's farms and farm fields. The controversy originated with the conclusion of the EPA's five year review study of the National Ambient Air Quality Standards (NAAQS) which suggested that the threshold for regulation of coarse particulate matter (PM-10) be reduced from the current 150 μg/m³to 65-85 μg/m³. While making a farmland tour earlier this spring, EPA Administrator Lisa Jackson attempted to debunk speculation about whether such findings in the NAAQS would result in more stringent air regulations on farms, calling these suggestions "not true." Agriculture Secretary Tom Vilsack also got in on the controversy, calling the speculation that the EPA would regulate farm dust a "myth."

But that was not the end of the matter since the EPA had not made a final decision as to whether PM regulations would be increased. The issue surfaced again in various GOP presidential debates and culminated in H.R. 1633, the Farm Dust Regulation Prevention Act of 2011, a bi-partisan bill that seeks to exempt so-called "nuisance dust" from the EPA's regulation under the Clean Air Act.

Today the EPA weighed in again on this issue. Mary Clare Jalonick at the Associated Press reports:

The EPA is trying to put to rest what it calls a "myth" that it is going to crack down on farm dust. In letters to two senators last week, EPA Administrator Lisa Jackson said the agency won't expand its current air quality standards to include dust created by agriculture.

Republicans and some farm-state Democrats have used the issue on the campaign trail, arguing that the EPA is set to penalize farmers for everyday activities. Republican presidential candidate Herman Cain said in a recent debate that the agency is "out of control" and was preparing to regulate dust.

Republicans in Congress have used the hypothetical dust rule as an argument against government regulations they say could eliminate jobs. Nebraska Sen. Mike Johanns and South Dakota Rep. Kristi Noem, both Republicans, have pushed legislation that would block the rule if it had been proposed.

Obama administration officials have tried to deflect talk of a dust rule for months, to little avail. A statement released by the agency Monday said that "EPA hopes that this action finally puts an end to the myth that the agency is planning to expand regulations of farm dust."

National Farmers Union President Roger Johnson said there has been considerable anxiety in farm country about the possibility of increased regulation on agriculture.

"We hope this action finally puts to rest the misinformation regarding dust regulation and eases the minds of farmers and ranchers across the country," Johnson said.

Noem issued a statement saying that the announcement does nothing to change the fact that the agency has the ability to regulate farm dust. But Johanns called the EPA statement a "victory," saying he would abandon an amendment on the issue he planned to offer to a spending bill this week.

"EPA has finally provided what I've been asking for all along," Johanns said. "Unequivocal assurance that it won't attempt to regulate farm dust."

Will these be the end of the matter? Stay tuned.

By Todd J. Janzen

Deadline looms to comply with SPCC rule

2011-10-01T19:39:00.000-04:00

Update: On October 18, 2011, the EPA issued a final rule extending the November 10, 2011 compliance deadline for certain farms until May 10, 2013. Review the Federal Register or consult an attorney to determine whether your farm must have a SPCC plan and by when. The original article below was written before October 18, 2011 and did not take the rule revision into account.

By November 10, 2011, many farms must have a Spill Prevention Control and Countermeasure (SPCC) plan in place. The Environmental Protection Agency (EPA) has promulgated a rule under the Clean Water Act that requires all farms (and other industries) to provide secondary containment for oil-containing structures over a certain size. To determine whether you must comply with the rule, answer the following questions:

Does my farm store more than 1,320 gallons of oil (or any related substance like diesel fuel, gasoline, hydraulic oil) above ground?
Does my farm store more than 42,000 gallons of oil (or any related substance) in an underground storage tank (UST)?

When calculating total gallonage, the EPA uses the "shell" of the container. Thus, a 50,000 gallon UST that routinely stores 20,000 gallons of oil would still require an SPCC plan. Using the shell method for calculating, if your farm answers "yes" to either question above, you need a SPCC plan.

An SPCC plan describes the spill prevention practices, drainage controls, personnel, equipment and resources necessary by the farm to prevent oil spills from reaching navigable waters. Each SPCC plan is unique to the facility, and will contain the following:

Operating procedures at the facility to prevent oil spills;
Control measures (such as secondary containment) installed to prevent oil spills from entering navigable waters or adjoining shorelines; and
Countermeasures to contain, cleanup, and mitigate the effects of an oil spill that has impacted navigable waters or adjoining shorelines.

In addition, if your farm's above ground storage of oils exceeds 10,000 gallons, the SPCC plan will need to be certified by a Professional Engineer (PE).

This article should not be construed as legal advice. Consult an attorney when determining whether your facility needs a SPCC plan.

Dairy Security Act Stirs Up Controversy

2011-09-27T22:03:00.002-04:00

A bill was introduced recently in the House of Representatives that aims to revise milk price supports in the United States. Democrat Collin Peterson of Minnesota and Republican Mike Simpson of Idaho introduced the Dairy Security Act of 2011. The bill provides dairy farmers with the option of purchasing margin insurance that is designed to provide payment to farmers when the margin between milk price and feed price decreases below a certain threshold. For those purchasing margin insurance, the bill also requires enrollment in a Dairy Market Stabilization Program intending to reduce milk production during low margin time periods. The bill is already is stirring up controversy.

The National Milk Producers Federation offered its support for the bill:

The Dairy Security Act (DSA) bill is somewhat different from the legislative discussion draft introduced by Peterson this summer, in that it now makes voluntary the Dairy Market Stabilization Program (DMSP), which will help reduce milk output during times of low margins. However, if dairy producers wish to elect to enroll in the subsidized margin insurance program through the U.S. Department of Agriculture, they will automatically be enrolled in the Dairy Market Stabilization Program so that they are promptly alerted when additional production may affect their overall margins.

The new legislation is also an improvement over the earlier version, according to NMPF, because extends the Basic level of margin insurance coverage to 80 percent of a producer’s production history, from 75 percent as initially proposed. The Supplemental margin coverage option is also improved, as it will now allow producers to purchase insurance for growth in their milk production history.

Other changes to the final version of the legislation include a refined provision in the Dairy Market Stabilization Program to ensure that it does not activate during times when signals for farmers to reduce production may impinge on the ability of the U.S. to export dairy products.

Meanwhile, other dairy industry trade organizations have already lined up to critisize the bill. The Wisconsin Dairy Business Board wrote to Senate and House Committees on Agriculture:

We are becoming increasingly alarmed that policy makers and elected officials believe there is consensus in the dairy industry on proposed dairy policy. There is not, and we hope that these letters will serve as evidence that while we agree that dairy policy reform is necessary, it must not come at the expense of farmers and others who rely on the industry for their livelihood.

Dairy farms are important to our communities, our families and our economy. And the growth of dairy in our regions has expanded jobs and created potential in our industry for the next generation of dairy farmers.

Some farmers feel that a government run ‘supply management’ program would help make sure all farmers stay within historical production limits and that this would help keep prices at profitable levels. We strongly disagree with this approach, and oppose any regulations designed to manage the milk supply by requiring all farmers to reduce their production.

The Wisconsin Dairy Business Board is joined by the Board of Directors of Bongards’ Creameries (Minnesota), Minnesota Milk Producers Association, First District Association (Minnesota), Alliance Dairies (Florida), Dairy Business Milk Marketing Cooperative (Wisconsin), Dairy Policy Action Coalition, High Desert Milk (Idaho), National All-Jersey Inc. (Ohio) and the Northeast Dairy Producers. The full text of the letter can be found here.

Both sides agree on one thing--the time has come to reform the way milk is priced in this country. But figuring out how that should be done will lead to a lot more debate.

By Todd J. Janzen

Agriculture Consultant Offers Warnings About Indiana's New Confined Feeding Operation (CFO) Regulations

2011-09-14T21:35:00.000-04:00

An environmental and agricultural consultant, Scott Severson, recently wrote an article for Indiana's dairy farmers cautioning them about some of the new restrictions contained in the Indiana Department of Environmental Management's (IDEM) new regulations for confined feeding operations (CFOs) and concentrated animal feeding operations (CAFOs). IDEM's upcoming CFO and CAFO regulations are still in draft form, so it is not too late to send IDEM your comments in for review. Scott's article appears below:

Thereare several items in the proposed rule that will add long term compliance expensefor many of your regulated members. Whencompared to the current CFO rule, in most cases, the proposed rule will hitCFO’s harder than CAFO’s. I will focuson two such items that have the most immediate and noticeable impact:

1. Virtually Eliminates Manure Application to Frozen or Snow CoveredGround:

· The proposed rule allows CFO’s to apply manureto frozen or snow covered ground only on an emergency basis. In practice this means your regulated IPDP memberscannot rely on winter time spreading as part of their long term manuremanagement operations. Even when theycan winter time spread in an environmentally sound manner, they will eventuallyincur the cost of expanding manure storage so winter time spreading does notoccur.

· Both the existing CFO rule (at 327 IAC 16-10-3)and CAFO rule (at 327 IAC 15-15-14) allow manure application on frozen or snowcovered ground subject to specific management plan conditions. IDEM has no supportable basis to abandon theexisting provisions and create a blanket prohibition on frozen groundapplication. The rule should be revised to allow land application on frozen orsnow covered ground in accordance with existing CFO rule conditions.

2. ManureApplication Rates Based on Phosphorus not Nitrogen:

· The proposed rule will eventually require allCFO’s to limit manure application based on phosphorus content not nitrogencontent. Under the proposed rule manurecannot be applied to a field with a soil test of greater than 200 ppmphosphorus, even when manure can be applied to that field with little or no knownenvironmental risk. For many IPDPmembers, this will lead to immediate operational changes. Many producers will need to reduce manureapplication rates in half to meet phosphorus limits and as a practical result,will incur costs associated with needing twice the amount of acres used formanure application. In some cases, purchaseof supplemental nitrogen fertilizer will be necessary due to an applicationrate based on phosphorus not nitrogen. Thistoo will add costs.

· Indiana is not required by EPA to add phosphorusapplication limitations to its CFO regulations. I am not suggesting that phosphorus is not aconcern, but there are already two existing mechanisms in Indiana to address manureapplication and phosphorus issues: the Office of the State Chemist, and IDEM’sWatershed Planning Branch. IDEM’sproposed phosphorus standard is a third mechanism to address phosphorusconcerns. In accordance with theGovernor’s commitment to reduce burdensome regulations on business, do we needto maintain or expand a third mechanism to manage phosphorus?

· There is no flexibility in the proposed phosphorusrule. Every field is different. A producer should have the ability to make asite specific demonstration that an alternate soil test phosphorus number wouldbe equally protective of the environment.

· How does this regulation benefit the environmentand at what cost? The provisionsregarding land application of phosphorus will eventually burden most farms witha known measureable compliance expense. It is unknown whether that cost will result in equal or greater economicbenefit. Soil erosion and conservationmanagement practices also play a role—indeed, may play a bigger role—inreducing phosphorus impact on surface water. This is why I suggested above, that we focus on the two mechanisms inplace already that will give us a bigger bang for the buck compared to theproposed IDEM phosphorus standard.

The common threat we all face, in the animal feedingindustry, is not necessarily IDEM but rather the external forces that pressureIDEM to make certain policy decisions. Weshould not think more burdensome regulation is always inevitable and giveup. Voicing our concerns now, inappropriate manner, will produce positive results.

Scott Severson is an agriculture and environmental consultant for Earthwise, Inc. He can be reached at: EarthWise, Inc., 63 Franklin Street, Valparaiso, IN 46383, phone: 219.531.0266, email: sseverson.earthwise@gmail.com.

Insurers Must Defend Tyson Foods Against Manure Complaints

2011-09-08T15:54:00.000-04:00

A few years ago I wrote an article about whether a livestock farmer would be insured under his (or her) general liability policy if he were faced with a lawsuit alleging injury or damage caused by "manure." The potential problem for the farmer is that his insurance policy likely contains a "pollution exclusion" that attempts to exclude claims involving "pollutants" that would otherwise be covered. In my prior article, titled "Is Manure a Pollutant?," I explained how this issue might arise:

A typical [commercial general liability] policy contains an exclusion for claims "arising out of the actual, alleged or threatened discharge, seepage, migration, dispersal, release or escape of ‘pollutants’." "Pollutants" is typically defined as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned, or reclaimed." "Manure" is generally not a specifically listed pollutant. Whether it falls within or outside of a pollution exclusion is a legal matter for a court to determine.

I concluded back then, based upon a long line of cases holding that industrial, commercial and household wastes were not "pollutants" under common pollution exclusions, that Indiana's appellate courts would likely conclude that "manure" was not a "pollutant." See e.g., American States Ins. Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996) (holding that "gasoline" was not included in the definition of "pollutant"). Although there was no case on point, the Arkansas Supreme Court had determined that human septic waste was not included in the definition of "pollutants" in Minerva Enterprises, Inc. v. Bituminous Coal Corp., 851 S.W.2d 403 (Ark. 1993):

In Minerva, a tenant sued his mobile home park owner after returning to his home to find that a defective septic system had caused an overflow of liquid and solid sewage in his home. The park owner’s insurance carrier refused to provide defense and indemnity because of a pollution exclusion. The Arkansas Supreme Court disagreed, finding the pollution exclusion to be ambiguous. The court held that the pollution exclusion was intended to exclude industrial wastes, not household wastes. Moreover, "the pollution exclusion was never intended to cover those who are not active polluters but had merely caused isolated damage by something that could otherwise be classified as a ‘contaminant’ or ‘waste.’"

The Minerva court declined to apply the pollution exclusion to septic waste.

Recently, the Delaware Superior Court was asked to decide whether "manure" was excluded from coverage under a number of different insurance policies' pollution exclusions. In Tyson Foods v. Allstate Insurance Company, Tyson Foods was faced with complaints that its poultry manure handling practices caused property damage to the Illinois River Watershed and bodily injury to certain individuals living nearby. Tyson Foods' insurers denied coverage for these claims, citing the "pollution exclusions" in various policies. On August 31, 2011, the Delaware Superior Court disagreed. Applying Arkansas law, it held that, based upon Minerva and cases that followed, the pollution exclusions were ambiguous and therefore did not obviously exclude the alleged damage caused by Tyson Foods' poultry waste applications. The court ordered the insurers to provide a legal defense to Tyson Foods against the allegations of property damage and bodily injury.

This is a significant victory for Tyson Foods as it insurers will now be required to provide it with a legal defense against the allegations in the complaints. This case should also be a lesson to livestock farmers to check their insurance policies for "pollution exclusions" that an insurer might assert to exclude coverage for manure-related incidents. Equally important, the Tyson Foods case teaches that a policyholder may challenge an insurer's denial of coverage and ask a court to resolve the dispute.

By Todd Janzen.

Are raw milk sales legal in Indiana?

2011-08-17T20:23:00.000-04:00

For a brief time during my childhood, my parents purchased milk directly from a neighboring farm. It came in recycled glass bottles rather than commercial cartons or jugs, but on my bowl of cereal, it tasted the same as store-bought milk. I cannot help but remember that during the summer months the milk actually had a green tint due to the pasturing of the cows. Little did I realize (or care) that I was drinking "raw" milk. Eventually, for convenience and consistency, or perhaps because the neighbors' cow went on to greener pastures, my parents switched the family over to store-bought milk.

Raw milk is "unpasteurized" milk. The state of Indiana requires pasteurization, a process by which milk is heated to slow microbial growth, on all milk that is delivered for "human consumption." Specifically, Indiana law states that:

A person may not offer, display for sale, sell, deliver, or have possession of with intent to sell or deliver milk or milk products for human consumption unless every particle of the final mixture of the milk or milk products used in processing or manufacture has been thoroughly pasteurized by equipment approved by the [Board of Animal Health].

Indiana Code 15-18-1-21. There are exceptions for certain types of cheese, which may be made from raw milk and sold directly to the public. But sales of raw, unpasteurized milk from a farm directly to a consumer are not allowed in Indiana.

I have heard of many attempts to circumvent the state's pasteurization requirement. I have seen raw milk offered for sale to "pets." And I have heard of cow-sharing arrangements, where individuals purchase a percentage of a cow, thus entitling the person to a percentage of the raw milk. I offer no opinion as to whether these methods for delivering raw milk to consumers are legal. But anyone providing raw milk to someone else should understand that there certainly are legal risks.

FFA = Future Farmers of Afghanistan?

2011-08-10T22:19:00.000-04:00

I had lunch today with First Lt. Bart Lamont who recently returned to Indiana from the fields of Afghanistan. Bart spent his time in Afghanistan working on agricultural education, including setting up the Future Farmers of Afghanistan. You can read more about Bart's time Afghanistan on his very informative blog: From the Statehouse to the Fields . . . of Afghanistan.

Bart was also featured in today's Hoosier Ag Today radio program, where he talked about the good work America's men and women are doing to build Afghanistan's agricultural economy. Welcome home Bart!

Photo Diary: The Livestock of Scotland

2011-07-19T08:45:00.002-04:00

My wife Sarah recently returned from a trip to Scotland. She spent much of her time there on the island of Iona. Her pictures of Scottish livestock were so good I thought I must post some to the blog.

The Highland Cows.

Cows grazing on a golf course.

Cattle in Iona, Scotland.

Cows eating seaweed on the beach.

Scottish Hereford?

Relaxing on the 9th hole.

Sheep grazing in front of Iona Abbey.

Twins.

Hebredian sheep, a rare and local Scottish breed.

My name is "007"

Mrs. Janzen herding sheep for vaccination.

North Carolina Hog Farm Pleads Guilty to Violating the Clean Water Act

2011-07-12T09:50:00.000-04:00

The Department of Justice (DOJ) recently issued a press release stating that "Freedman Farms, Inc. and its president, William B. Freedman, pleaded guilty . . . in federal court in New Bern, N.C., to violating the Clean Water Act when they discharged hog waste into a stream that leads to the Waccamaw River." According to the statement, Freedman Farms is farm located in Columbus County, North Carolina and raises 4,800 swine. The hog waste was supposed to be directed to two lagoons for treatment and disposal. But in December 2007, hog waste was discharged from Freedman Farms directly to Browder’s Branch. Freedman Farms, the corporation, pleaded guilty to a Felony, while William Freedman, the president of Freedman Farms, pleaded guilty to a misdemeanor violation of the Clean Water Act for his role in the discharge.

Assistant Attorney General Ignacia S. Moreno gave his take on this case:

Owners and operators of concentrated animal feeding operations must comply with the nation’s Clean Water Act for the protection of America’s streams, wetlands, and rivers. Freedman and his farm failed to do so and should be held accountable for polluting waterways and wetlands in Columbus County and the Waccamaw River watershed.

Likewise, Mareen O'Mara, a federal EPA criminal enforcement officer, explained why the EPA and DOJ became involved:

Large farms and dairies can cause serious damage to the environment if they illegally discharge wastewater into nearby lakes, rivers, and streams. That is why EPA has made addressing violations by concentrated animal feeding operations an enforcement priority. In this case, waste products from nearly five thousand hogs went directly into a sensitive wetland area, jeopardizing the safety and health of water and wildlife. This guilty plea demonstrates that farm owners must obey the law and will be held responsible for their actions.

Historically, regulation of farms and smaller non-navigable creeks was left to the jurisdiction of states. The Clean Water Act applies in all states, but states typically take the lead in enforcing its application. Recently, however, there appears to be a trend of federal EPA investigations into the operations of livestock farms in the United States. Referring a case to the DOJ for criminal prosecution is alarming. It is not clear from the press release exactly what happened here that led a farmer to plead guilty to violating the Clean Water Act, but the mere fact that the DOJ brought a criminal case against a hog farmer is news by itself. And it is also cause for concern.

The plea agreement asks the judge to sentence Freedman Farms to pay a $1.5 million fine, serve 5 years probation, and issue a public apology. Mr. Feedman may be sentenced to "up to one year" in prison for his misdemeanor guilty plea.

The complete press release can be found here: DOJ Press Release Freedman Farms

New Animal Care Standards for Livestock and Poultry Farmers

2011-07-07T12:53:00.001-04:00

Farmers I work with take animal husbandry seriously. Animal care is at the core of what they do. You can tell that these farmers take pride in the health of their herds, show off prized cattle at county fairs, and do everything they can to provide a safe living environment. Still, many people who lack this understanding raise concerns about current farming practices. To address these issues, the Indiana Board of Animal Health is currently considering adoption of animal care standards for Indiana's livestock and poultry farmers.

The new standards require that animals be giving access to adequate food, water, shelter, and veterinary care:

Food and Water: A person responsible for caring for livestock or poultry must provide the animals access to food and water that can reasonably be expected to maintain the health of animals of that species, breed, sex, and age, raised using the applicable production method.

Shelter: A person responsible for caring for livestock or poultry must provide the animals access to sufficient shelter from the weather when it can reasonably be expected to be necessary to maintain the health of animals of that species, breed, sex, and age, raised using the applicable production method.

Veterinary Care: A person responsible for caring for livestock or poultry must take reasonable measures to protect the animals from an injury or disease that can reasonably be expected to seriously endanger the life or health of animals of that species, breed, sex, and age, raised using the applicable production method.
(b) A person responsible for caring for livestock or poultry with an injury or disease that seriously endangers the life or health of the animal must either:
(1) provide treatment that can reasonably be expected to be sufficient for animals of that species,
breed, sex, and age, raised using the applicable production method; or
(2) euthanize the animal.

There are also standards for transportation of animals, requiring reasonable methods be used to avoid injuries during transport. Each of these standards specifies that species, breed, sex, and age be taken into account, since caring for swine is not same as caring for poulty.

The standards can be viewed on the Board of Animal Health's website by clicking here: Proposed Animal Care Standards. The public is encouraged to submit written comments to the board prior to the standards' final adoption this July.

Should America's Farmers Care About Gulf Hypoxia?

2011-07-01T09:21:00.000-04:00

The hypoxia zone in the Gulf of Mexico is an upcoming issue facing agriculture. Josh Trenary at Indiana Pork recently wrote a good article about the hypoxia issue:

The Mississippi River Gulf of Mexico Watershed Nutrient Task Force was created in 1997 to address issues caused by excess nutrients in the Missippi-Atchafalaya River Basin (MARB). Excess nutrients (called eutrophication) stimulate too much algae growth in a body of water. This can lead to a condition known as hypoxia. Hypoxia occurs when the excess algae removes too much oxygen from an area of water, forcing animals to move out of that area until the correct amount of oxygen is restored.

First documented in 1972, excess nutrients in the MARB have created a hypoxic zone in the Gulf of Mexico that appears every summer and continues to increase in size. In recent years, the movement to decrease the amounts of excess nutrients from entering the water throughout the MARB has been gaining momentum. As part of these efforts, the Missippi River Gulf of Mexico Watershed Nutrient Task Force has developed an action plan. One component of this action plan was to develop state-led nutrient reduction strategies.

The Mississippi River Gulf of Mexico Watershed Nutrient Task Force has many members from different federal and state agencies. Indiana, for example, is participating via the Indiana State Department of Agriculture. This means that Indiana will be one of the states developing state specific nutrient reduction strategies.

Continue reading after the jump: Gulf Hypoxia Overview

New Fertilizer Run-Off Exemption Effective July 1, 2011

2011-06-13T09:26:00.000-04:00

Indiana law makes it illegal to “drain” or “cause to seep” into waters of the state any organic matter that causes or contributes to a polluted condition. I.C. § 13-18-4-5. Stated in plain English, this means that Indiana law forbids a farmer from land applying manure in such a manner that will cause it to run off into a stream or ditch.

For years, the Indiana Department of Environmental Management (IDEM) applied an “agricultural storm water exemption” to this law. Provided the farmer had a valid CAFO permit, properly land applied manure within agronomic rates, and the run-off was the result of precipitation, not poor farming techniques, IDEM generally would not seek civil enforcement for agricultural run-off into streams or creeks. But the “agricultural storm water exemption” only applied to CAFOs, the largest of Indiana’s concentrated livestock farms. As a result, a small farm or CFO that did not have a CAFO permit did not get the benefit of the ag storm water exemption, meaning the same conduct that might result in liability for a CFO or small livestock farm resulted in no liablity for a CAFO.

On July 1, 2011, this inconsistency will come to an end as a revision to the law expands the ag storm water exemption to all farms. On this date House Bill 1187 will become law. This new law states:

     [I.C. § 13-18-4-5(a)] does not apply to organic or inorganic matter that consists of fertilizer material contained in:
        (1) runoff from a storm event; or
        (2) irrigation return flow;
entering the waters of Indiana as a result of land application of fertilizer material in compliance with rules adopted by the state chemist under I.C. 15-16-2-44.

I.C. § 13-18-4-5(b)(2011).

This law exempts liability for fertilizer run-off from farm fields following a storm event, provided the chemical fertilizer or manure was properly land applied. To ensure that fertilizer or manure is properly applied, farmers should follow the rules and guidelines established by the Office of State Chemist, as well as any permit conditions established by IDEM.

Farmers should carefully maintain accurate records of chemical fertilizer and manure land application activities because the exemption does not apply automatically. In order to receive the benefit of the exemption after a land application run-off event, farmers must furnish IDEM documentation of compliance.

This article is intended to be informative only and should not be construed as legal advice.

Photo Diary: Kansas in Early June

2011-06-08T21:30:00.002-04:00

I just returned back from a trip to south central Kansas and northern Oklahoma. Here are few pictures.

Kansas skyscraper.

Wheat harvest underway.

The Arkansas River. (Pronounced Our-Kansas before it crosses into Oklahoma.)

Planting sorghum.

Miles and miles of golden wheat.

The Pioneer Woman of Ponca City.

Purdue Extension Offers Webcast on Delayed Planting Issues

2011-05-27T11:26:00.000-04:00

Purdue Extension will offer a public teleconference/webinar focused on the delayed planting issues facing Indiana farmers Friday, May 27, 2011 from 2 to 3 p.m. EDT for the public.

For more information, click here: Purdue Webcast Information

Fight Over Tractor Teaches the Lesson of "Mutual Mistake"

2011-05-21T14:02:00.000-04:00

In Tracy v. Morell (Ind. Ct. App. 2011), the Indiana Court of Appeals recently resolved a dispute between a buyer and seller of a tractor using the principle of "mutual mistake."

In 2002, Mr. Morell sold Mr. Tracy a used 2002 Ford New Holland tractor for $12,500. Tracy signed a promissory note promising to pay Morell $500 down and $500 per month until the note was paid in full. Tracy paid only $8500 on the note.

Representative photo. Not the tractor in this case.

Meanwhile, the Orange County Sheriff's department brought charges against Morell alleging that he had received other stolen property (including some farm equipment). Morell pled guilty. Tracy learned of this conviction and became concerned that the tractor he purchased was also stolen. A detective investigated and found that the identification number on the tractor had been ground off, puttied, and altered. Ultimately though, it was "cost prohibitive" according to the detective to determine whether the tractor was indeed stolen because "the tractor would have to be torn apart, the engine taken apart, and the numbers taken from the engine, and then contact the manufacturer in Japan to see which dealer the tractor was sold to."

A lawsuit followed. Tracy sued Morell for fraud and Morell counterclaimed for the balance of the tractor note, $4000. At trial, Morell tried to explain how he sold a tractor with an altered identification number without "knowing" it was stolen:

Q[Attorney]: Did you know the tractor had altered [identification] numbers or ground off [identification] numbers?
A[Morell]: No, sir.
Q: You didn’t know the [identification] numbers had been ground off and putty filled in and repainted over?
A: No, sir.
Q: How long did you own that tractor before you sold it to Mr. Tracy?
A: I’m gonna say longer than a year. I don’t know roughly really right off hand.
Q: Where’d you get it?
A: Bought it.
Q: Where’d you buy it from?
A: Uh, I believe, I don’t know, I believe it come out of Richmond, Indiana.
Q: Okay, who did you buy it off of?
A: I don’t know, this was ten years ago.
* * *
Q: Did you ever have a chance to look for the [identification] numbers or serial numbers?
A: Never really came up or spend anytime looking.
Q: And when you sold that tractor to Mr. Tracy, you didn’t know the [identification] numbers had been ground out and putty put back in and repainted?
A: Had no idea.
* * *
Q: Yeah. And you don’t, you think it’s just a coincidence that you pled guilty to four other counts involving altered [identification] numbers and farm equipment and this tractor you sold Mr. Tracy is altered, is that just a coincidence?
A: I believe it is.
Q: Now, you had no intention of selling Mr. Tracy a stolen tractor.
A: No, sir.
Q: And you don’t think that tractor is stolen?
A: At the time I had no reason to believe that.
Q: Do you think the tractor is stolen now that you know about it?
A: I have no idea.

Though Morell's answers to these simple questions were somewhat evasive, the Court of Appeals held that the evidence was insufficient to support a finding of fraud--that Morell knowingly or intentionally sold a stolen tractor.

But that was not the end of the matter. Morell's "no idea" about how the identification numbers were ground down, puttied over, and replaced, created another problem for him. If he truly did not know that the tractor was stolen--and Tracy certainly did not know it was stolen--then there was a "mutual mistake" at the center of the contract. Mutual mistake exists where both parties share a common assumption about a vital fact upon which they based their contract, and that assumption is false. Courts generally hold that under such facts, there is no contract, because the minds of the parties have in fact never met. As result, the Court of Appeals here ordered that the tractor be returned to Morell, and that Morell return to Tracy the $8500 he had already paid, with interest.

The moral to this story is best expressed by the court itself: "We decline to adopt a rule that someone may sell altered property with impunity and then claim ignorance as a complete defense in a civil action arising from the sale." Farmers should be cautious when purchasing farm equipment from a stranger.

New Confined Feed Operation (CFO) Rules: Coming Soon to an Indiana Farm Near You

2011-05-16T09:25:00.006-04:00

The Indiana Department of Environmental Management (IDEM)'s Water Pollution Control Board today preliminarily adopted new Confined Feeding Operation (CFO) regulations. The preliminary adoption means that these regulations will now undergo a final public comment period before they come back to the Water Pollution Control Board for final adoption. After that happens, likely a few months from now, the new CFO regulations will be law. But what changes are in store for Indiana's CFOs (and those that become CFOs)?

First, let's do the numbers. The CFO rule applies to Indiana's farms with more than 300 cattle, 600 swine, 600 sheep, 30,000 fowl, or 500 horses. There are ways that even smaller farms can be forced into the CFO program by IDEM, for example, if the small farm has continually is causing violations of water pollution laws. (For more on CFOs, click: What-is-a-CFO?)

One of the requirements in the application for a CFO is the submittal of a "farmstead plan." Among other requirements, the farmstead plan must show how uncontaminated surface water is diverted from production areas in the farm. From a practical standpoint, this means that CFOs will have to demonstrate to IDEM that clean water, for example, run off from barn rooftops, does not mix with dirty water, for example, silage leachate, before it is channeled into a ditch or stream. In the past, CFOs did not have to manage this type of clean stormwater. It is unclear whether illustrating where surface water goes on the farmstead plan also means the CFO must actively manage the surface water.

CFOs area also required to put practices in place for "mortality management." Simply stated, this means that a CFO must manage the storage of dead animals to avoid contact with clean stormwater.

The new CFO rules would also give IDEM the authority to require CFOs to implement groundwater monitoring to ensure that no manure related constituents enter groundwater. The rules leave the door open for IDEM to require some facilities to develop written "ground water monitoring plans" for this purpose. The CFO operator would have to periodically submit groundwater results to IDEM for review. Not all CFOs will be subject to these requirements.

The new CFO regulations contain a prohibition on land application on "frozen" or "snow covered" ground. For many currently permitted CFOs, winter land application in the past has been a must. Indiana winters are just too long to stockpile manure until spring weather arrives. These farms will face some tough decisions the first winter after the new CFO rules go into effect.

The new CFO rule requires that a CFO "must be designed, constructed, and maintained with a combined storage capacity of at least one hundred eighty (180) days storage." In the past, IDEM permitted facilities with 120 days or 90 days of manure storage. While the 180 day requirement is not new, there is concern that the prohibition on application on frozen or snow covered ground will, in essence, mean that all CFOs must have at least 180 days of manure storage capacity to make it through the winter.

The new CFO regulations have been preliminarily adopted. They are subject to change during the final comment period. If you have comments on these issues or others, please submit those to IDEM. A copy of the new version of the draft CFO regulations is found at: Draft-CFO-Rule

Legal disclaimer: Nothing in this post should be relied upon as legal advice for how to comply with IDEM's CFO regulations. Consult an attorney if you need assistance with compliance questions.

Is There Room for Everyone in Agriculture's Tent?

2011-05-05T22:23:00.001-04:00

"For the billion of underfed people in the world today, there are a billion-and-a-half that are overweight."

This is one of the interesting facts I heard last night on my drive home from work on NPR's Marketplace. The statement highlights that many in the world go hungry while some of us, this author included, have more food than we really need. Marketplace asked whether organic and non-GMO agriculture are sufficient to solve this problem and feed a growing worldwide population:

The United Nations says a billion people go hungry on this planet each day. And the overall population is growing. Experts expect we'll top 9 billion by 2045. The looming question: How to feed everyone with limited resources? This week, several major foundations -- including Ford and Gates -- launched a $3 million a year initiative aimed at figuring out how to come up with the food we need. -Tess Vigeland, Marketplace

The author, Adrienne Hill, interviews some of these experts and suggests that although organic and non-GMO foods may play a role in feeding some, the lower yields are just not enough to feed a growing global population:

The farmers markets in Los Angeles these days are piled high with organic strawberries and kale. To the contented shoppers, this is what the future should be -- fruits and veggies grown on small farms, nearby the city. But, get over it. This isn't the future -- not if we want to feed everyone. -Adrienne Hill, Marketplace

Continue reading or listening to this story at Marketplace: the-non-organic-future

FDA Files Suit Against Pennsylvania Dairy for Selling Raw Milk

2011-04-26T22:15:00.001-04:00

On April 26, 2011, the Food and Drug Administration (FDA) filed suit against Rainbow Acres Farm in Pennsylvania seeking a permanent injunction to halt the sale of unpasteurized, or "raw" milk. The press release from the FDA can be found at: http://www.fda.gov/pressrelease.

The FDA had previously sent a number of warning letters to the farm warning that its selling of raw milk violated federal law, including this letter on April 10, 2010:

An investigation by the U.S. Food and Drug Administration has determined that you are causing to be delivered into interstate commerce, selling, or otherwise distributing raw milk in final package form for human consumption. Such distribution is a violation of the Public Health Service (PHS) Act, Title 42 United States Code, Section 264(a), and the implementing regulation codified in Title 21, Code of Federal Regulations (CFR), Section 1240.61(a). The regulation prohibits the delivery into interstate commerce of milk and milk products in final package form for direct human consumption unless they have been pasteurized. For your information, we have enclosed a copy of the regulation as it was published in the Federal Register, 52 FR 29509 (Aug 10, 1987).

Complete letter is found at: www.fda.gov/warningletter2010

Although producers tempted to sell raw milk may worry about state law liability, the FDA suit is a good reminder that federal law prohibits the sale unpasteurized milk if such sale is accomplished through interstate commerce. The Code of Federal Regulations states:

Mandatory pasteurization for all milk and milk products in final package form intended for direct human consumption.
(a) No person shall cause to be delivered into interstatecommerce or shall sell, otherwise distribute, or hold for sale orother distribution after shipment in interstate commerce any milkor milk product in final package form for direct human consumptionunless the product has been pasteurized or is made from dairyingredients (milk or milk products) that have all beenpasteurized, except where alternative procedures to pasteurizationare provided for by regulation, such as in part 133 of thischapter for curing of certain cheese varieties.

21 C.F.R. § 1240.61

Finally, for those new to the raw milk debate, the FDA website contains a good synopsis of why the law prohibiting the sale of raw milk in interstate commerce exists. www.fda.gov/dangersofrawmilk This includes, according to the FDA, a number of "myths" about the benefits of raw milk:

Raw Milk & Pasteurization: Debunking Milk Myths

While pasteurization has helped provide safe, nutrient-rich milk and cheese for over 120 years, some people continue to believe that pasteurization harms milk and that raw milk is a safe healthier alternative.
Here are some common myths and proven facts about milk and pasteurization:

Pasteurizing milk DOES NOT cause lactose intolerance and allergic reations. Both raw milk and pasteurized milk can cause allergic reactions in people sensitive to milk proteins.
Raw milk DOES NOT kill dangerous pathogens by itself.
Pasteurization DOES NOT reduce milk's nutritional value.
Pasteurization DOES NOT mean that it is safe to leave milk out of the refrigerator for extended time, particularly after it has been opened.
Pasteurization DOES kill harmful bacteria.
Pasteurization DOES save lives.

Environmental Groups Petition the EPA to Require Regulation of Ammonia Emissions from CAFOs

2011-04-18T23:19:00.010-04:00

An organization called the Environmental Integrity Project, as well as other citizen groups from Wisconsin, Illinois, and Michigan, the Humane Society of the United States (HSUS), Sierra Club, and the Waterkeeper Alliance (collectively, the "petitioners"), have petitioned Lisa P. Jackson, the administrator of the U.S. E.P.A, alleging that the EPA has failed to regulate “ammonia” under the Clean Air Act. In particular, the petition is directed at ammonia emissions from large concentrated animal feeding operations, or CAFOs.

The petitioners contend that ammonia is a “pollutant” under the Clean Air Act:

Ammonia gas, an air pollutant emitted in vast quantities by Concentrated Animal Feeding Operations (CAFOs), meets the criteria for listing as a CAA criteria pollutant, because ammonia emissions from numerous CAFOs and other sources “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” CAA § 108. The predominantly rural nature of this pollution does not limit EPA's authority to regulate; in fact, courts have made clear that even localized, site-specific, and infrequent ambient air pollution may create a public health risk that meets the § 108 standard and therefore warrants CAA regulation.

The petitioners then allege that ammonia emissions create a public health risk:

Ammonia pollution threatens public health in numerous ways encompassed by these broad definitions. Threats to public health from ambient ammonia include increased risk of respiratory symptoms, eye and nose irritation, and other physical discomfort, as well as more severe health effects. Ammonia also contributes to the health effects of the mixture of gases in CAFO air emissions, which studies have linked to respiratory symptoms as well as headaches, nausea, and increased incidence of infant mortality. If certain communities face a disproportionate and substantial risk of adverse health effects from airborne ammonia, EPA may – and should – find that ammonia warrants regulation as a criteria pollutant. Extensive research conducted on both human and animal subjects over several decades establishes that ammonia emissions endanger human health. Indeed, several federal agencies, including EPA, have recognized this threat by establishing health standards or recommended exposure limits to protect workers and others exposed to airborne ammonia. CAFO emissions research further shows that airborne ammonia levels in some communities currently exceed relevant health benchmarks, demonstrating that ammonia is reasonably anticipated to endanger public health.

The petitioners cite to a number of studies that purport to prove the dangers of ammonia inhalation at various levels. The petition suggests that inhalation of ammonia is dangerous for CAFO workers as well as nearby residents.

But the petitioners do not just point the finger at "ammonia" as the public health threat. Instead, the petition is specifically directed at ammonia emanating from CAFOs, as facilities that “release vast quantities of ammonia into the ambient air, creating a heightened health threat to communities near numerous and/or very large CAFOs.” The petitioners assert that “CAFOs are leading contributors to the nation’s ammonia inventory; by one EPA estimate livestock account for approximately 80 percent of total emissions. CAFOs also emit a disproportionately large share of the ammonia in certain states and communities.”

The petition also blames ammonia emissions for “deterioration of property and economic values,” and “quality of life issues.” Likewise, the petitioners assert that ammonia emissions create an environment where many “homeowners living near CAFOs find themselves unable to sell their homes and relocate because CAFO air pollution . . . makes their home undesirable, thereby dramatically lowering its market value.” Finally, the petitioners contend that ambient ammonia “impair[s] visibility in pristine areas.” These alleged effects of ammonia emissions appear as nothing more than diversions from the real question about whether ambient ammonia emissions from CAFOs should be regulated "pollutants" under the CAA. The EPA's core mission is not to protect property values or improve the desirability of residential homes. The EPA's purpose is to protect human health and the environment. www.epa.gov/aboutepa

The petition is the latest attempt to add another level of regulation upon what is already a highly regulated industry. Many persons who do not work with livestock producers and farmers on a day-to-day basis might read the petition and assume that CAFOs and large farms operate without any, or at least very little, oversight. Such an assumption would be wrong. In reality, America's large farms are already highly regulated, sophisticated enterprises.

The petition concludes with a request to the EPA that it regulate ammonia emissions from CAFOs. The full text of the petition can be found at: Environmental Integrity v. EPA - Petition

EPA Officially Exempts Milk Containers from SPCC Rule

2011-04-12T16:03:00.001-04:00

The EPA announced today that milk and milk containers would be exempted from the Oil Spill Prevention, Control and Countermeasure rule (SPCC). This means that milk containment structures will not need to comply with the same standards in place for oil containment structures. EPA Administrator Lisa Jackson wrote in the EPA's press release today:

“After working closely with dairy farmers and other members of the agricultural community, we’re taking commonsense steps to exempt them from a provision in this rule that simply shouldn’t apply to them. Despite the myths that have arisen about EPA’s intentions, our efforts have been solely focused on exempting milk and milk products from this regulation -- and that exemption is now permanent. This step will relieve a potential burden from our nation’s dairy farms, potentially saving them money, and ensuring that EPA can focus on the pressing business of environmental and health protection.”

For more information about the EPA's decision, please click on the following links:

EPA's April 12, 2011 press release: EPA press release on milk/SPCC

EPA's fact sheet on milk/SPCC rule exemption: http://www.epa.gov/oem/docs/oil/spcc/fs_milk.pdf

Challenging Times Remain for Dutch Dairy Farms in the U.S.

2011-04-06T08:05:00.004-04:00

While driving home the other evening an interesting story caught my attention on NPR's Marketplace. It was a story about Dutch dairy families that immigrated to Iowa. I have been to the Netherlands many times, seen the beautiful Dutch farms, and I have worked with Dutch farmers in Indiana and Ohio. But I was not familiar with those that relocated to Iowa. Sadly, their struggles are the same as those facing Indiana's dairy farmers in recent years.

This new wave of farmers left their successful but limited farms in the Netherlands to build new, bigger, and better farms in the United States. Unfortunately for some of these farmers, the American dream turned into a nightmare. Skyrocketing feed prices combined with plummeting milk prices to making it impossible to make ends meet. As stated by Dutch farmer Edward Reuling, referring the last half of the decade:

Cows were more expensive, feed was more expensive. We couldn't make any profit at that time.

Indiana too has seen an influx of Dutch dairy farmers in the past decade. Some of these farms have weathered the economic storm. And unfortunately, some have been forced to go back to the Netherlands, as the article states, "penniless." Let's hope better days are ahead.

A link to the Marketplace story is below:

Program to lure Dutch dairy farmers to U.S. turns sour | Marketplace From American Public Media

Recent Missouri Agricultural Nuisance Case: Court of Appeals Affirms $11 Million Jury Award

2011-03-29T23:15:00.003-04:00

The Missouri Court of Appeals today affirmed a jury award of over $11 million dollars against a hog operator in John Owens v. ContiGroup Companies, Inc. In the case, fifteen plaintiffs sued ContiGroup and Premium Standard Farms alleging that these operations created a "nuisance" in Gentry County, Missouri. At the trial court, a jury awarded thirteen of the plaintiffs $825,000 each, one plaintiff $250,000 and one plaintiff $75,000.

The Court of Appeals found that there was substantial evidence to support the jury's verdict that there was a nuisance:

There was substantial testimony that both ill odors from gasses and chemicals released from PSF's hog operation and other emissions (such as hog effluent), which cause ill odors, traveled from PSF's land onto the Respondents' properties. Each Respondent's property was in close proximity to PSF's extensive hog operations and each testified that he or she experienced great distress as a result of odor coming onto his or her property.

On appeal, the hog operator argued that the jury's verdict was excessive, since it compensated the plaintiffs for more than the diminution (or reduction) in value of their homes. The Court of Appeals rejected this argument:

An action for temporary nuisance includes, as was asserted in this case, non-economic damages, including inconvenience, discomfort and loss of quality of life. See e.g., Brown v. Cedar Creek Rod & Gun Club, 298 S.W.3d 14, 21 (Mo. App. W.D. 2009); Peters, 292 S.W.3d at 385 (Mo. App. W.D. 2009). There is no authority for the proposition that a damage award is excessive if damages for the loss of the use and enjoyment of property exceed the actual market value of that property. Further, our legislature has recognized that there is an inherent additional value in a homestead that exceeds the fair market value of the property.

The court affirmed the award because it found that the hog operator had failed to argue before the jury that the damages sought were excessive, instead choosing to focus on whether the farm operations created any liability at all.

No doubt that this case will raise a concern for many Indiana livestock producers--should I be worried about my farm being sued for nuisance? There is no easy answer, of course, as nuisance suits are factually complex and turn on a number of factors that vary from case to case. Fortunately, Indiana has a very strong Right to Farm Act, which was passed to protect farmers from nuisance suits like the Owens case. Look for more discussion of the Right to Farm Act and agricultural nuisance in future posts.

The complete opinion can be found here.

Disclaimer: I am not licensed to practice in Missouri and was not involved in litigating this case. This post is meant to be informative only and not offered as legal advice.

Dairy Herd Network - The Journey of Milk, Part 1: It's all about dairy cow comfort - Latest

2011-03-22T09:04:00.000-04:00

For people who did not grow up on a farm, its important to understand how food gets from the farm to the table. Here is a great video telling the story of how milk gets from forage in the field to the carton on the breakfast table.

Dairy Herd Network - The Journey of Milk, Part 1: It's all about dairy cow comfort - Latest

How does the National Pork v. EPA case impact Hoosier farmers?

2011-03-18T20:52:00.000-04:00

On March 15, 2011, the 5^th Circuit Court of Appeals, sitting in New Orleans, Louisiana, issued a ruling in the case titled: National Pork Producers Council v. U.S. E.P.A. Although there are a number of holdings in the decision, one in particular has generated a lot of interest in agricultural circles—the EPA cannot require a CAFO that “proposes” to discharge to obtain a NPDES (or CAFO) permit. Only those CAFOs that actually discharge manure into navigable waters must apply for CAFO permits. Likewise, a CAFO operator that does not discharge faces no liability for his or her “failure to apply” for a CAFO permit.

What does this mean for CAFOs in Indiana? Not much. At least not yet. In Indiana, the EPA typically does not regulate CAFOs, Indiana’s largest livestock producers. (Although I have been present for EPA inspections of Indiana farms). Instead, the EPA has delegated that authority to Indiana. Indiana has statutes and regulations implementing the federal CAFO rule. Though the federal CAFO rule my be partially struck down, Indiana’s CAFO rule remains on the books unless and until an Indiana court similarly strikes down the equivalent provisions. That has not happened. Thus, for the time being, Indiana’s farms that meet the threshold livestock numbers for entry into the CAFO program must apply for a CAFO permit, even if they do not propose to discharge. Stay tuned.

Update March 25, 2011: I understand that IDEM is currently reviewing this case and determining how it should impact the upcoming revised CAFO regulations.

The complete ruling from the 5^th Circuit can be found at:

http://www.ca5.uscourts.gov/opinions/pub/08/08-61093-CV0.wpd.pdf

EPA Administrator Testifies Before U.S. House Committee on Agriculture: No need to cry over spilled milk.

2011-03-14T21:50:00.001-04:00

E.P.A. Administrator Lisa Jackson recently testified before the U.S. House Committee on Agriculture. One of the interesting points of her testimony is that the EPA does not intend to treat "spilled milk" like "spilled oil." This should cause Indiana dairy farmers to breathe a sigh of relief. Hopefully, the Indiana Department of Environmental Management will follow suit. Administrator Jackson's testimony is below (bold material highlights the "spilled milk" passage:

Chairman Lucas, Ranking Member Peterson and Members of this committee, thank you for inviting me to testify. I’m pleased to be here today.

I have great respect for the oversight role of Congress and believe that this ongoing dialogue is central to the commitment I have made to the American people to conduct EPA’s business transparently and with accountability.

I also believe an important part of that commitment is to dispel certain myths about EPA’s work and its impact on agriculture. These mischaracterizations are more than simple distractions; they prevent real dialogue to address our greatest problems. And so, today, I would like to spend a few minutes addressing some of them directly.

Let me begin, though, with one simple fact that I proudly embrace: farmers and ranchers are an essential part of our economy. They give us food, fiber, and fuel. The innovators in American agriculture deserve great credit for the significant steps they’ve taken to protect the environment while feeding millions of people.

With that recognition in mind, my direction to EPA has been to establish a consistent dialogue with the agriculture community, which is crucial to our work.

This is why I would like to take a moment today to address some of the mischaracterizations that have been, at times, unaddressed, or that need to be addressed again. As I’m sure you would agree, Mr. Chairman, facts matter and we all have a responsibility to ensure that the American people have facts and the truth in front of them, particularly when fictions are pushed by special interests with an investment in the outcome.

Let me give you five examples:

One is the notion that EPA intends to regulate the emissions from cows – what is commonly referred to as a “Cow Tax.” This myth was started in 2008 by a lobbyist and –quickly de-bunked by the non-partisan, independent group fact-check.org – it still lives on. The truth is - EPA is proposing to reduce greenhouse gas emissions in a responsible, careful manner and we have even exempted agricultural sources from regulation.

Another mischaracterization is the claim that EPA is attempting to expand regulation of dust from farms. We have no plans to do so, but let me be clear, the Clean Air Act passed by Congress mandates that the Agency routinely review the science of various pollutants, including Particulate Matter, which is directly responsible for heart attacks and premature deaths. EPA’s independent science panel is currently reviewing that science, and at my direction EPA staff is conducting meetings to engage with and listen to farmers and ranchers well before we even propose any rule.

Another example involves spray drift. While no one supports pesticides wafting into our schools and communities, EPA does not support a “no-spray drift policy.” EPA has been on the record numerous times saying this, but the incorrect belief that EPA desires to regulate all spray drift persists. We have reached out to National Association of State Departments of Agriculture and other key stakeholders. Working with them, we have been able to identify critical issues and we will continue our efforts to resolve them.

Yet another mischaracterization is the false notion that EPA is planning on mandating Federal numeric nutrient limits on various States. Again, let me be clear: EPA is not working on any federal numeric nutrient limits. We will soon be releasing a framework memo to our regional offices that makes it clear that addressing nitrogen and phosphorus pollution – which is a major problem - is best addressed by the States, through numerous tools, including proven conservation practices. The case of Florida is unique – the last Administration made a determination that federal numeric nutrient standards were necessary in Florida, requiring EPA to develop such standards.

And finally is the notion that EPA intends to treat spilled milk in the same way as spilled oil. This is simply incorrect. Rather, EPA has proposed, and is on the verge of finalizing an exemption for milk and dairy containers. This exemption needed to be finalized because the law passed by Congress was written broadly enough to cover milk containers. It was our work with the dairy industry that prompted EPA to develop an exemption and make sure the standards of the law are met in a commonsense way. All of EPA’s actions have been to exempt these containers. And we expect this to become final very shortly.

Contrary to the myths is the reality I spoke of earlier. EPA is in close consultation with America’s farmers and ranchers. We have listened to their concerns and made them a part of the work we do. Let me give just one example that is very important to this committee.

When EPA proposed higher renewable fuels production mandates under RFS 2, we heard – again through extensive public comments and direct conversations – the ethanol industry’s concerns with the analysis of greenhouse gas impacts, which EPA was conducting under a requirement from Congress. We addressed their concerns, and we now have a rule that encourages vast innovation, respects the needs of agricultural communities, and is expected to create jobs and increase farmers’ incomes by $13 billion annually by 2022.

Mr. Chairman, everyone in this room, has the same desire – to have safe water, air and land for our children – and to do so in a way that maintains our economic strengths. EPA will continue to work with this committee, as well as our partners in the States and the agricultural community to achieve the goals we have set together, and to serve the values we all share. Thank you.

CAFOs? CFOs? What does Indiana law say?

2011-03-01T20:13:00.000-05:00

A couple years ago I wrote an article for the American Bar Association on Indiana's regulatory scheme for permitting animal feeding operations. The law is still the same today, at least until new CAFO regulations are promulgated. The notes below are an excerpt from that article. Email me and I can send you more.

CONCENTRATED ANIMAL FEEDING OPERATIONS – CAFOs

I. What are CFOs and CAFOs?

CFOs and CAFOs are Indiana’s largest livestock producers. CFOs are defined as the “confined feeding” of at least:

· 300 cattle;

· 600 swine or sheep; or

· 30,000 fowl.

327 IAC 16-2-5. “Confined feeding” means feeding animals in pens, sheds, or buildings for at least forty-five (45) days of any given year.

CAFOs are defined similarly and include three different sizes of livestock operations: animal feeding operations (“AFOs”); medium CAFOs, and large CAFOs. Large CAFOs must operate under NPDES permits. The threshold numbers to be considered a large “CAFO” in Indiana are:

700 mature dairy cows
1000 veal calves
1000 cattle
2,500 swine (greater than 55 pounds)
10,000 swine (less than 55 pounds)
500 horses
10,000 sheep
55,000 turkeys
30,000 hens
5,000 ducks

327 IAC 5-4-3. IDEM may also designate other livestock operations “CAFOs” depending on site specific conditions, e.g., based on their level of manure discharged into waters of the state. IDEM deems all Indiana CAFOs to have the “potential” to discharge pollutants into waters of the state and therefore are “point sources” requiring an NPDES permit.

II. Why are there two permitting schemes?

Prior to 2001, Indiana permitted its CAFOs by issuing CFO approvals—it did not require each operation to obtain separate NPDES permits. In 2002, an environmental group sued IDEM alleging its CFO regulations failed to adequately enforce the federal Clean Water Act. See Save the Valley, Inc. v. United State Env. Prot. Agency, 223 F. Supp.2d 997 (S.D. Ind. 2002). The federal district court agreed and sent IDEM back to the drawing board to come up new livestock operation regulations that adequately addressed the Clean Water Act’s prohibition of discharges into waters of the United States. The result was the promulgation of IDEM’s CAFO regulation. IDEM left its CFO regulations on the books, and a dual permitting scheme was born.

Manure Run-Off From Frozen or Snow-Covered Ground

2011-02-23T19:16:00.000-05:00

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.

Dairy Herd Network - Low demand hurting organic dairy - Latest

2011-02-21T19:39:00.000-05:00

Here is an interesting article about demand for organic milk.

Dairy Herd Network - Low demand hurting organic dairy - Latest

Roundup Ready Alfalfa Ready for Cows

2011-02-15T09:22:00.000-05:00

http://www.psrb.com/alert/239

Why did I create this blog?

2011-02-07T20:51:00.004-05:00

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.

Reflections: Shoveling Bunks

2011-01-29T11:36:00.001-05:00

It is another cold snowy Indiana morning. As much as I grumble about this winter’s bitterness, I cannot help but think how fortunate I am. As an attorney, my exposure to the cold exists only for short jaunts in and out of heated buildings. For many farmers, farm workers, and others that make their livelihood outdoors, dealing with the cold is constant necessity. For me, it is an inconvenience.

On these cold days, I cannot help but remember what it was like to be a boy growing up on a beef cattle farm in central Kansas. Unlike central Indiana, where the weatherman (or woman) often forecasts “light flurries,” in Kansas, it either snowed or it did not snow at all. And when it snowed, I could count on my dad to politely get me out of my warm bed to shovel feed bunks.

Cattle must be fed every day, at least twice. And apparently they do not like to eat food mixed with snow, or perhaps the snow leaves little room for feed. Either way, the snow must go. And who better to remove it than a boy with a shovel. So every time it snowed, I would suit up in my coveralls, pull up my “Moon boots” and head outside to shovel what seemed like miles of feed bunks. Scoop, turn, dump in the pen, then repeat. About 8000 times.

This was “character building,” as it was affectionately called by those adults trying to instill good character in youngsters. In hindsight, it worked. Now each morning that it snows, I look outside, and just when I start dreading having to shovel my driveway I remember—I could be shoveling feed bunks.