Top 5 Ag Stories for 2011

It is hard to believe that it was only last January (2011) when I launched the Janzen Ag Law Blog. The response from farmers, ag industry leaders and other attorneys has been overwhelming. Thanks to Leah Beyer at Indiana Soybean Alliance for suggesting that blogging was a great way to connect my legal practice to the agricultural industry. You were right!

As 2011 comes to an end, I thought it would be helpful to spend a few minutes looking back at the top 5 Indiana ag stories from 2011:

1. Major CAFO ruling against the EPA. In March, the 5th Circuit Court of Appeals decided National Pork Producers Council v. E.P.A. The case was a landmark decision affecting the Environmental Protection Agency's (EPA) ability to regulate concentrated animal feeding operations (CAFOs). The court struck down the EPA's interpretation of the Clean Water Act that allowed it to regulate CAFOs even though they did not actually discharge any pollutants into waters of the United States. This case will result in significant changes for Indiana CAFOs in the coming years.

2. Indiana Implements Animal Care Standards. The Indiana Board of Animal Health (BOAH) adopted new animal care standards for Indiana farmers. The new standards are the first of their kind for Indiana (but probably not the last).

3. New Confined Feeding Operation Regulations. November brought new regulations for confined feeding operations (CFOs) in Indiana. Among the many new provisions that are controversial are prohibitions against manure application on frozen or snow covered ground. The new regulations also limit phosphorus application. Needless to say, the regulations have not been without their critics. The new CFO regulations go into effect on July 1, 2012.

4. Continued Tension Between EPA and American Agriculture. There were a number of stories this past year about the EPA and its increasing efforts to further regulate agriculture. Nearly everyone by now has heard about the EPA's involvement in the Cheasapeake Bay area. But the EPA's regulators were also busy outside of the Bay area, imposing fines on Midwestern CAFOs. Agribusinesses too were not off the EPA's radar. December brought a story of a soybean processor agreeing to pay $96,588 in civil penalties for failure to comply with the Clean Water Act. And who could miss all of the articles about whether the EPA was going to regulate farm dust? I predict there will even more stories about the EPA in 2012.

5. New Child Labor Restrictions Shock the Ag Community. When the Department of Labor rolled out new proposed restrictions on child labor, it faced a firestorm of critisicm from farmers and ag industry groups.

Thanks for following my blog. Look for more exciting legal ag topics in 2012!

Phosphorus: Fertilizer or Nemesis?

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?

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"?

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

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

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

"Mixed" is how I described the reaction to the Indiana Department of Environmental Management's new regulations for Confined Feeding Operations ("CFOs") and Concentrated Animal Feeding Operations ("CAFOs") in a recent interview with Hoosier Ag Today.  Since I made that statement, various newspapers and other groups have run headlines describing the CFO and CAFO regulations in various lights.  I've collected links to some of those stories here.

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

State officials contend the updated rules, which replace restrictions approved six years ago, will provide significant new protections for ground and surface waters. 

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

But activists said that aside from a handful of improvements, the revised rules fail to adequately protect water quality, public health and communities near big livestock farms -- the largest of which can generate as much excrement as a town.

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

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

Rules that Indiana regulators adopted last week to govern large livestock operations were a welcome step toward protecting water quality from careless operators. But environmental advocates are raising legitimate concerns that the rules don’t go far enough. 

                      

The Hoosier Environmental Council, Sierra Club Hoosier Chapter, Indiana CAFO Watch and Citizens Action Coalition sent out a joint news release about those concerns. The groups were specifically worried that setback requirements were not stringent enough and that the whole process lacks the transparency needed to keep the public informed.

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

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

Posted by Todd Janzen

Indiana Updates Rules for CAFOs

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 Regulations Approved For Indiana Livestock and Poultry Farmers

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?

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

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

The Environmental Protection Agency (EPA) is proposing 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 of the farm and the total available land application area for the CAFO.  The reporting requirements are the result of a settlement agreement reached between the EPA and the Natural Resources Defense Council, Waterkeeper Alliance, and the Sierra Club.  

The proposed rule is unique in that it proposes two different options for how CAFOs would be required to submit the information.  Under the first option, all CAFOs, regardless of size, would be required to submit the requested information to the EPA. The EPA estimates that approximately 20,000 CAFOs would be subject to reporting under this option. Individual states can submit the information directly to the EPA if the information has already been gathered 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 quality concerns would be required to report information to the EPA.  A focus watershed is would be identified on a case-by-case basis based upon: vulnerable ecosystems, proximity of drinking water source supply, watersheds with high recreational value, high densities of animals, patterns of vulnerable soils, and other factors.  

The EPA is requesting public comment on both options as well as alternative approaches to gather information. The proposed rule will be open for public comment for 60 days following publication in the Federal Register, which occurred today. The EPA plans to take final action on this proposal by July 2012.  

By Todd J. Janzen

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

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/m³ to 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

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

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

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:  

There are several items in the proposed rule that will add long term compliance expense for many of your regulated members.  When compared to the current CFO rule, in most cases, the proposed rule will hit CFO’s harder than CAFO’s.  I will focus on two such items that have the most immediate and noticeable impact: 

1.  Virtually Eliminates Manure Application to Frozen or Snow Covered Ground:

·                    The proposed rule allows CFO’s to apply manure to frozen or snow covered ground only on an emergency basis.  In practice this means your regulated IPDP members cannot rely on winter time spreading as part of their long term manure management operations.  Even when they can winter time spread in an environmentally sound manner, they will eventually incur the cost of expanding manure storage so winter time spreading does not occur.

·                    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 snow covered ground subject to specific management plan conditions.  IDEM has no supportable basis to abandon the existing provisions and create a blanket prohibition on frozen ground application. The rule should be revised to allow land application on frozen or snow covered ground in accordance with existing CFO rule conditions.

2.       Manure Application Rates Based on Phosphorus not Nitrogen:

·                    The proposed rule will eventually require all CFO’s to limit manure application based on phosphorus content not nitrogen content.  Under the proposed rule manure cannot be applied to a field with a soil test of greater than 200 ppm phosphorus, even when manure can be applied to that field with little or no known environmental risk.  For many IPDP members, this will lead to immediate operational changes.  Many producers will need to reduce manure application rates in half to meet phosphorus limits and as a practical result, will incur costs associated with needing twice the amount of acres used for manure application.  In some cases, purchase of supplemental nitrogen fertilizer will be necessary due to an application rate based on phosphorus not nitrogen.  This too will add costs.

·                    Indiana is not required by EPA to add phosphorus application limitations to its CFO regulations.  I am not suggesting that phosphorus is not a concern, but there are already two existing mechanisms in Indiana to address manure application and phosphorus issues: the Office of the State Chemist, and IDEM’s Watershed Planning Branch.  IDEM’s proposed phosphorus standard is a third mechanism to address phosphorus concerns.  In accordance with the Governor’s commitment to reduce burdensome regulations on business, do we need to maintain or expand a third mechanism to manage phosphorus?

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

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

The common threat we all face, in the animal feeding industry, is not necessarily IDEM but rather the external forces that pressure IDEM to make certain policy decisions.  We should not think more burdensome regulation is always inevitable and give up.  Voicing our concerns now, in appropriate 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

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?

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?

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

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

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

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.