Court tanks anhydrous case, but Ohio farmer’s battle not over


SHARON CENTER, Ohio — The Medina County prosecuting attorney is appealing a Licking County judge’s April 13 decision to dismiss a lawsuit against the Ohio Department of Agriculture, alleging ODA’s regulations for anhydrous ammonia tanks used on farms are inadequate.

The original suit was filed by the county prosecutor’s office in January on behalf of Sharon Township trustees, who believed there were health and safety issues to the public under current regulations.

Specific tank. The prosecutor specifically targeted a 12,000-gallon tank installed last year by farmer Bruce Simmons of Beach Road, and also sought an injunction against “any” such tank.

Case dismissed

On April 13, Judge David Branstool of the Licking County Common Pleas Court dismissed the case, saying the trustees were overstepping their statutory authority and there was no reason to believe the current regulations are not sufficient.

In his motion to dismiss, Branstool said “there is nothing in the statute to suggest that the current regulations are insufficient or unreasonable.”

He also called the perceived threat of injury “speculative.”

“The injury the township anticipates, an anhydrous ammonia spill or accident, is wholly speculative,” the judge wrote. “The township cannot allege injury with any certainty based upon the regulations in (Ohio Revised Code).”

On April 15, the department of agriculture completed its inspection process by issuing the farmer his permit to operate the tank. He had been issued a permit to install it in 2010.

“The department (had) thoroughly reviewed the standards for this,” said ODA Communications Director Andy Ware, who said the department followed normal permitting procedures. “We believe the tank is properly installed and can be operated in a safe manner.”

Appeals decision

But by the close of the week, the prosecutor, on behalf of the trustees, issued an appeal in the 5th District Court of Appeals, again asking an injunction against permitting, or continuing to use, Simmons’ tank as well all such tanks in Ohio, until the court issues its decision.

The appeal alleges the department has a “mandatory” duty to issue stronger regulations to protect public health and property, and alleges the injunction is necessary because “immediate and irreparable injury will result” to people within the township, and the general public, if use of the tank, and use and installation of all tanks in Ohio, are not immediately suspended.

The appeal also alleges that a statewide injunction “will not cause substantial harm to others” and that “the pubic interest will be served.”

Without merit

On April 18, the Ohio Department of Agriculture filed a response to the appeal, saying “it is entirely without merit and should be denied,” and that the appellant “fails utterly” on each of its arguments.

The department says the township lacks legal standing and that its proposal to stop the use of all (70-plus) farm-use anhydrous ammonia tanks in Ohio would be an “unlawful withdrawal or suspension” of tanks already lawfully permitted.

“The harm to farmers relying on such tanks would be immediate, severe, and widespread throughout Ohio,” according to the department, and would “vastly outweigh” any benefits of such act.

The department said there is nothing that would require an injunction, and says the state’s regulations for the tanks are established in accordance with “the most authoritative standards available,” — the American National Standards Institute.

Calls made to the Medina County prosecutor’s office were not returned before press time.

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