Know your manure management liability and know what you’re doing

WOOSTER, Ohio – Livestock manure can be a valuable asset or a costly liability.

Peggy Kirk Hall, director of agricultural and rural law at Ohio State University, addressed a producers, crop advisers, soil and water district employees and other industry members during the 2002 Manure Science Review on the Wooster campus of the Ohio Agricultural Research and Development Center.

“When you analyze manure liability, you need to look at who is liable for what, to whom and on what basis,” she said. “The (farm) operator could be held liable for water pollution that is harmful to fish and wildlife in the event that manure is spilled into or upon the environment. They can also be held liable due to nuisance effect created by the presence of manure and its harm to private property.”

Lots of laws. She explained that problems could come from violations related to the Ohio or NPDES permits, the Ohio Agriculture Pollution Abatement Law, Ohio environmental laws or Ohio laws related to wildlife, nuisance issues, negligence, trespassing or highway laws.

Facilities with 1,000 or more animal units operate under a permit that prohibits the amount of manure discharged from the operation to be in excess of the amount specified in the permit.

“When a producer violates the terms and conditions of the permit, the court looks at what the permit says and who caused the violation,” Kirk Hall said. “In the event of a liability, there is a civil fine, repairs or restitution, reimbursement of the government’s costs to investigate the violation and mitigation, minimizing, removing or abating the discharge.”

Facilities with less than 1,000 animal units are not required to obtain a permit, but they are encouraged to voluntarily comply with the local soil and water conservation district’s recommendations or those from the chief of the soil and water conservation to abate agricultural pollution.

She explained that agricultural pollution occurs when a producer fails to use practices to abate the degradation of the waters of the state by animal waste. In the event of a liability, criminal or misdemeanor charges will be filed, and the violator will be required to make repairs, restitution or reimburse the government for its costs to investigate, mitigate, minimize, remove or abate the problem.

“Environmental laws state that no person shall place sewage or waste in a location causing pollution of any water of the state,” she said. “Liabilities result in civil fines or prison and reimbursement for any necessary, reasonable, additional or extraordinary costs in investigating, mitigating, minimizing, removing or abating the spill, release or contamination.”

Kirk Hall said that under the Ohio Department of Natural Resources, no person shall place or dispose of waste in any ditch, stream, river, lake, pond or other watercourse or upon the bank of any water course. Violation is considered a criminal offense punished by a fine and or prison time.

Under state laws, no person shall take or kill a wild animal contrary to the rules of the state division of wildlife. This law also states that no person shall cause or allow an unauthorized spill, release or discharge of material into the air or water causing the death of an animal.

“Violation of this law is considered a criminal offense resulting in a fine and or imprisonment,” she said. “It also requires the offender to pay the minimum value of the animal and the costs incurred in the investigation of the death of the animals if they are convicted or plead guilty.”

Nuisance issues. Nuisance laws relate to unreasonable interference with another individual’s quest for the use and enjoyment of their property, or whatever the state declares to be a nuisance. The health department can also declare a nuisance issue when the property, its sewage, plumbing, drainage or ventilation are in a condition that is dangerous to life or health.

“This can be a public or private issue and can be prosecuted by the government or a representative of the public,” she said. “Violators are subject to civil damages. The fines include covering the costs pertaining to the abatement or the reimbursement of the costs related to the clean-up or abatement of a spill.”

Under the terms of an attractive nuisance, producers can be held liable for the harm to a foreseeable child trespasser caused by a dangerous condition or property if the landowner failed to act responsibly to prevent the harm from occurring.

“Right now, the question is whether manure lagoons and other storage systems present dangerous conditions,” she said.

Negligence can result from a person’s lack of due care causing harm to a person on the landowner’s property, a person off the property or harm to other property. Trespassing liability is caused by the physical invasion of another property or interest, resulting in damages caused by occupation, physical injury, harm to property, loss of value or emotional distress.

“Manure can be a trespasser,” she said. “But at the present, the courts are split as to whether odor is a trespasser or not.”

Transportation issues. Highway law states that an operator on any highway must prevent their load from dropping, shifting, leaking or escaping. Violations are considered a minor misdemeanor. The penalty includes compensation for damage to property.

And when manure is sold and transported, a whole different set of issues come into play, according to Kirk Hall.

“The courts look at issues such as who is liable and where does manure leave the facility,” she said. “They also look at who is liable if there is a spill, pollution or discharge, whether it would be the livestock producer, transporter, applicator or landowner.”

Courts also look at applicable law. They look at whether there is a contract and what the terms of the contract are. Does the contract address liability? They look at whether there is a bad actor. Did an individual recklessly or carelessly, and who was in control of the manure at the time of the problem?

“When they look at applicable law, they look at allocating the liability,” she said. “The guilty party may have to seek reimbursement from the party who caused the violation. But the potentially guilty party may not be the person who caused the problem in the first place.”

When the courts look at who is in control of the manure at the time of the problem, they also look at whether the applicator is an independent contractor.

“The chief factor in determining if someone is an independent contract is whether they have the right to control the manure or the means of performing the work,” she said. “It is possible that all potentially liable parties will face liabilities in a civil liability claim. Several parties could be held liable for their participation in the harm caused by the act… and the defendants must fight it out.”

Producers’ defense. Producers can protect themselves by having an approved permit from the Ohio Department of Agriculture, Kirk Hall said. “This is an affirmative defense in a civil action if the operator is operating under and in compliance with an approved permit.”

“Producers need to have an approved operation and management plan. Any approved plan is helpful. The plaintiff must prove that the operator was using substandard compliance of their plan.”

Ag district protection. Kirk Hall added that Ohio and other states also have a piece of legislation known as the “Right to Farm Law” which dictates agricultural districts can protect farmers from nuisance lawsuits.

“If you are not in an agricultural district, I would advise you to do so,” she said. “They protect agricultural activities from nuisance claims filed by a person coming into the area after the agricultural activities exist, provided those activities are not in conflict with the laws, rules or they are conducted in generally accepted agricultural practices.”

Other means of protection including voluntary measures on the part of the operator to mitigate the spill or discharge, and the use of best management practices. “Anything you can do to show that you know what you are doing is beneficial,” she said.

Producers should also take care of potential attractive nuisances. “Take reasonable measures to prevent access to the area,” she said. “Take reasonable actions to mitigate harm.”