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.

Should America's Farmers Care About Gulf Hypoxia?

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

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

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

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"

Representative photo.

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.

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

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?

"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