by David Armstrong, Esq.
In 2015, the toxic cyanobacterial algal bloom in Lake Erie was the worst in recorded history. You may not be aware of this, simply because the situation received much less press than in previous years, such as 2014 when enormous clouds of microscopic bacteria clogged Toledo’s public water treatment system. A lot has been done in recent years in Canada and the United States, as well as here in Ohio, to strengthen the laws and regulations designed to protect surface water, in an effort to slow the contributions of chemicals that feed these algal blooms. It is too early to say whether these efforts have succeeded; due to the pollution storage capacity in the lake, it will take years to understand how much effect these efforts have had.
Still, there are calls to continue the protective actions now, and those often come from people who are also calling for greater control on one of the least heavily regulated industries in America: agriculture. It may sound ignorant to claim that agriculture is not heavily regulated, given that there is heavy government oversight over everything from the location and construction of new facilities to whether or not something is fit to be sold for human consumption. However, in the greater context of American industries, agriculture is one of the most freely deregulated sectors of the economy. In large part, we owe this to a combination of our collective reverence for the farmer in gratitude and respect for the role played in building our country, and to the very simple recognition of the fact that if we don’t have farms, we will not have food. Proponents of greater controls point out that agriculture has changed, modernized and industrialized, in the more than 200 years since our founding, and that in so changing it has become something very different from the revered family farm. This is irrelevant, others say, as agriculture is naturally a business where profits are only at the margins, fortunes are made and lost on the unpredictability of the weather, and we all still have to eat.
Rightly or wrongly, calls for change in the regulation of agriculture will continue to grow in volume and fervor. Squarely in the middle of many of those calls will be one particular unpleasantness; our hunger for cheap protein has encouraged the explosive growth of confined animal feeding operations in many shapes and formats, and these operations all have a massive problem disposing of their manure. Historically, going back almost to the very dawn of integrated agricultural operations (i.e., those that both raise livestock and produce crops), livestock have been fed with crops raised on the land, and manure has been used to fertilize that land. This is a nearly-closed system for the nutrients that flow from soil to plant to beast to manure, with some naturally being lost to numerous factors. It is easy to conclude that this system works at any scale, but, in reality, it does not. There are limits to what soil can absorb, and manure is often not transported for disposal as far away from the production site as is the feed brought in to livestock operations that require it.
Fundamentally, the problems that manure is known to cause arise from two issues: handling and application/disposal. Manure is known to contain much of the “gut flora” – the microbiological ecosystem that lives inside the digestive systems of most large organisms – and is further known to provide a rich breeding environment for other bacteria common outside the animal. As such, when improperly stored, manure can give rise to outbreaks of e. coli and salmonella in human and animal populations. Nitrite pollution, to which infants and the elderly are especially vulnerable, has been linked to manure contaminating groundwater systems. The problems of algal blooms are known to arise in water bodies which have an imbalance in their phosphorous levels, which is normally a limiting nutrient in those ecosystems that prevents algae populations from overgrowing. Explosive algal growth often correlates with water bodies whose feeder streams are heavily surrounded by agricultural operations.
Whether or not you feel that this problem is well stated or out-of-proportion, it should be easy to accept that there is currently a lot more manure being generated by the agricultural sector than in the past. The time has come to take that which is waste and find a way to make it profit. This is not the first time an opportunity has existed for transformation in the way that we think of a traditional agricultural waste product. Whey and whey protein, a byproduct of cheese making, was once thought to be only good for either feeding to hogs or dumping down the drain. Now, whey protein recovered from cheese production is used to make everything from the relatively banal protein powders to novel forms of plastic. It may be difficult to imagine such potential for manure, but it is important to remember three very important facts about manure from commercial agricultural production: (1) the amount of manure produced by a facility is directly correlated to the number of animals housed in that facility, making the amount of manure produced by any given facility an easily knowable quantity, which makes it a reliable, scalable, and schedulable feedstock – important factors for modern manufacturing and production; (2) in addition to agricultural nutrients like phosphoric pentoxide, nitrogen, and potassium oxide, manure is a source of organic chemicals such as methane and ammonia, and is known to contain, at various levels of decomposition, the hormones, steroids, and other medications given to livestock during their lives; and (3) even outside of the possibilities that could, one day, come to light for the use of manure, it is already known to be a world-class, first choice fertilizer.
There are already some methods available to repurpose and recycle manure from agricultural production, such as manure-to-energy, or, biomass energy systems, which ferment manure to create methane, which is used to heat buildings and generate electricity. Others have turned to manufacturing manure into fertilizer pellets, which can be sold as a sterile yet potent fertilizer for use in both home and commercial horticulture. Both of these methods require financial investment and the belief that they will provide a return on that investment, either in the form of profit or cost savings. However, right now, farmers big and small are disincentivized from making these investments because there is so little governing the application of manure to land. Again, looking at the way that agriculture is less regulated than other industries, consider the humble foundry. A key part of foundry operation is the use of sand to create molds for casting products using molten metals. These sands have a limited usage life, due to the changes in chemical composition which occurs over time at high temperatures and pressures, and eventually the sand must be discarded. For generations, this sand was simply regarded as an inert fill, and was treated as such. We now know that used foundry sand is a potentially dangerous source of heavy ferrous metals, which qualifies much of the material as a hazardous waste subject to regulation under the Resource Conservation and Recovery Act (RCRA). As a result of this designation, and government regulation, the foundry industries in America were forced to deal with the cost of disposing of these sands as hazardous wastes. After careful consideration by the industry, regulators, and academic institutions, it has been determined that some spent foundry sands can be used – and sold! – for a variety of functions. In short, the incentive created by government regulators’ conclusion that these wastes would have to be expensively disposed led to the conclusion that, while some of those materials were subject to hazardous waste regulation, much of the waste could be sold.
When state and federal agencies consider making new environmental rules, they do so in a way that requires an opportunity for the public to participate in the process, in the form of providing objections, criticism, and other comments of the proposed rule. Participation in these commenting periods is critical for those who would be impacted by the proposition. While individual participation is certainly allowed, many similarly situated individuals have found that by banding together and securing the assistance of a knowledgeable attorney, they can accomplish much more, and have much more impact, than if they were to simply go it alone. First, writing an official comment is often a more technical exercise than one might imagine, as it requires not simply knowing the area involved, but being able to read and digest the proposed rule and its potential application in the regulated activity. Identifying and commenting on as much as possible is critical to influencing the process. Second, the commenting process is often relatively short, and preparing a comment can be a full-time exercise for any person working on it. Your time is valuable and, probably, you don’t simply have a month of free time to spend examining regulations and putting your thoughts to paper. An attorney can do these things, and will charge, but the value of a professionally-written comment, and your own work time, will likely outweigh the cost of hiring counsel. You should seriously consider that regulations of manure, in some form or another, are going to come to agriculture, Ohio, and your farm. You are passionate about your business and your farm, and you expect to have control over how it operates. In the face of regulation, the best way to retain that control is to fight to steer the process. If you have any questions about what regulations have been proposed, what has already been tried, and what you would like to see in the future, contact an attorney to discuss the matter further and find out what you can do to become a decision-maker in the future of Ohio’s agricultural development.
Fair Shake Environmental Legal Services is a non-profit legal services organization serving individuals and organizations in Pennsylvania and Ohio. Using a unique combination of discounts for modest-means clients and incubation of attorneys preparing to begin solo careers, Fair Shake seeks to expand access to justice throughout the Appalachian basin. Two of our current resident attorneys, David Armstrong, Esq. and Ryan Hamilton, Esq. are planning to pursue solo practice that involves providing representation and legal guidance to the agricultural industries, steering those in need through the changes ahead. If you would like to speak with a Fair Shake attorney about your agricultural operations and how they may be impacted by regulation in the near future, please contact us.