Why Sound the Alarm for Resistance to Bt Corn?

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

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

CDC: More Outbreaks Where Raw Milk is Legal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading here.

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

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

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

Egg Producer Agreement Shows the Value in Mediation

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

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

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

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

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

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

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

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

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

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

Toxicologist Responds to Atrazine's Critics

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

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

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

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

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

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

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

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

Ethanol News From Across the Hall

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

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

Did President Obama Read the Janzen Ag Law Blog?

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

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

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

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

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

Bill Gives Farmers a Legal Tool to Stop Groundless Nuisance Suits

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

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

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

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

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

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

Sackett v. EPA: Quotes from oral argument

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

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

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

Justice Breyer: “for 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite. And yet -- so here you are saying that this statute that says nothing about it precludes review, and then the second thing you say is that this isn't final. So I read the order. It looks like about as final a thing as I have ever seen.”  

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

To the read the full transcript, click here.

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

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

Representative Photo

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

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

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

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

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

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

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

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

The Debate on Labeling GM Food

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

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

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

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

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

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

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

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

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

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.