Indiana Real Property and Environmental Law Report - Commentary on State and Federal Environmental Issues Affecting Indiana

SB 373 is a bill designed to protect Indiana farmers from unauthorized videotaping on their farms. But it is running into stiff opposition at the Statehouse. The authors of the bill are Sen. Eric Holdman, (R-Markle) and, (Rep. Bill Friend, R-Macy).  

The bill would make it a misdemeanor for an individual to photograph or videotape what happens on a farm without the owner’s permission. In addition, it states that this punishment only occurs if the individual has the intent to harm the relationship between that farm and its customers. The bill further stipulates that, if the individual taking the photos or videos turns them over to the authorities within 48 hours as part of a complaint of animal abuse or other illegal actions, the person will not be charged. Only if the individual obtains the images without permission and releases them to the public with the intent of negatively impacting that operation, would the person be charged. 

It passed easily through the Senate.  SB 373 drew a standing room only crowd before the House Ag Committee two weeks ago. Media, environmental, and animal activist groups testified against the bill. Indiana media organizations expressed strong disapproval of the bill that they claim is in violation of their First Amendment rights.  The media’s position is that the bill would inhibit undercover investigations of farms that are necessary because government regulatory agencies are not capable of overseeing agricultural operations. 

The Indiana Broadcasters Association and Hoosier Press Association maintain the bill is unconstitutional.   Other organizations against SB 373 include the Humane Society of the United States, Hoosier Environmental Council, Citizens Action Coalition, and IN CAFO Watch.

And as you would expect, the bill is supported by many farm orgaizations and food producers.

More on this bill in a future post.

In May 2011, Indiana enacted a voluntary Clean Energy Portfolio Standard (CPS), that sets a goal of 10 percent of the state’s electric generation to come from clean energy sources by 2025.  At this point, with 12 years to go, we are at 2.8% from wind power - ranking us 20th in the nation. We have a way to go.

Indiana's CPS goals are part of the national program defined by the Department of Energy.

In a total of 14 states, American wind energy provides 5 percent or more of generation. But in 2012, Iowa and South Dakota reached generation levels greater than 20 percent across their states.

Overall, Texas uses the most electricity and relied on wind energy for 9.2% of its electrical generation last year. Texas now uses more wind power than any other state, with more than 12,000 megawatts installed – over a fifth of the 60,000 MW in the United States at the end of last year. 

The U.S. wind energy industry had its strongest year ever in 2012, installing over 13,000 MW of electric generating capacity.  The industry experienced 17 percent growth last year, and produced more than 10 percent of the electricity in nine states, up from five states in 2011.

Here's a chart from the American Wind Energy Association:

Percent of electric power from wind generation by state/Top 20 States during 2012

In yesterday's post, we looked at legislation that is most likely to remain dormant in this session.

But one piece of legislation is moving along quite nicely, thank you very much - SJR 7. Addressing that highly contested issue - the right of Hoosiers to hunt, fish, and farm - SJR 7 is designed to take a proposed constitutional amendment to the electorate.

For most of us who hunt, fish, or farm - we didn't know we had an issue, let alone a controversial one. No one that I know of is threatening to take away our right to hunt, fish, or farm. And not likely to do so.

This is the language the General Assembly proposes:

"The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights."

Pandering to one constituency or another is nothing new to the Indiana General Assembly, or any other state's legislature from what I can tell, but creating a constitutional amendment to serve specific industries takes this to a new level - one fraught with difficult constitutional issues.

I'll have more on this topic in future posts.

Joe Donnelly, our newly elcted US Senator, on environmental policy:

"Indiana has been blessed with beautiful and abundant natural resources.  From Lake Michigan and the Indiana Dunes to the Eel River and the vast acres of fertile farm land, these resources enhance our communities, drive our economy, and remind us of our fundamental responsibility to be good stewards of the earth.

I believe that environmental protection is the responsibility of everyone.  Too often in today’s fast-paced world, we make choices without thinking about how they will impact the environment.  By making the conscious effort to recycle, conserve energy, and treat our natural resources with respect, we can all do our part to protect the environment for our children and grandchildren.  

. . . I also believe that our national policies must reflect our responsibility to the environment.  For this reason, I am committed to protecting endangered wildlife and preserving the natural habitats in which they reside.  Furthermore, in light of the challenges posed by climate change, I was proud to support H.R. 6 in the 110th Congress, The Clean Energy Act (Clean Energy Act 2007.pdf), which aims to reduce our dependence on carbon-based fuels while promoting clean, renewable energy sources such as ethanol, hydrogen, and solar.   

I also understand that responsible resource management—especially soil and water—are critical to protecting environmental quality as well as preserving our ability to farm productively.  In addition, as a member of the Great Lakes Task Force, I will work hard to ensure that our lakes and rivers are clean for future generations to enjoy.

America is unmatched in its environmental diversity and rich natural resources, and our government has an important role to play in protecting these national treasures.  Rest assured, I will work hard to ensure that our national policies reflect the stewardship necessary to ensure a healthy environment both today and tomorrow."

So now we know. Sort of.  We'll see how it plays out.

Indiana's new confined animal feeding regulations went into effect on July 1.  They will require producers to change record-keeping and manure management practices.

Last fall, the Indiana Department of Environmental Management (IDEM) approved revised rules that altered the environmental management requirements of confined feeding operations and concentrated animal feeding operations. 

Indiana defines a CFO as "any animal feeding operation engaged in the confined feeding of at least 300 cattle, 500 horses, 600 swine or sheep, or 30,000 fowl, such as chickens, turkeys or other poultry." 

All CAFOs are classified as CFOs, but CAFOs house more animals and have previously had more stringent regulations and permit application procedures. Under the new rules, CAFOs have the option to continue to have CAFO permits or assume general CFO permit status.  CAFOs wishing to move into the CFO program had to have submitted their applications by June 29, 2012.  

If an operation wants to maintain their CAFO status, it will need individualized permits approved by IDEM.  Operators with individual CAFO permits will be required to create nutrient management plans accessible to the public and will need to keep records of daily inspections. 

There are mortality management requirements that must comply with the State Board of Health regulations found at 345 IAC 7-7. 

We now have new rules specific to CFO operators regarding winter manure application and soil phosphorus.  Under the new regulations, manure application on frozen and snow-covered ground is no longer permitted.  There are exceptions for emergency situations.  Operators can apply for special permits that allow for winter application if a farm was previously permitted with less than 120 days of manure storage. 

The new CFO rules also require that farmers apply manure to their fields on the basis of the soil's phosphorus content. Previously, manure was applied to fields based on soil nitrogen content and nitrogen needs for the coming crop. 

The regs require that soil phosphorus not exceed 200 parts per million by 2018.  Between now and then, farmers must monitor soil phosphorus concentrations and work to begin the very gradual process of reducing the phosphorus content of their fields.  As of July 1, July 1, 2012, CFOs cannot apply manure to soil with phosphorus levels higher than 400 parts per million. 

More information about the rule changes is available on the IDEM website at http://www.in.gov/idem.

You can find a regulations here: CFO Regulations.pdf

IDEM has the permit applications and planning and zoning authorities in Harrison and Jackson Counties will grant approval – or not – for the expansion of confined hog operations numbering 4,000 head each.

In Elizabeth, a town in Harrison County, D Livestock, Inc. operates a 4,000 head facility that it seeks to double in capacity.  And roughly 50 miles north, near the Jackson County seat of Brownstown, another farmer hopes to obtain zoning approval and IDEM permitting for a similar operation.  Both are likely to meet stiff opposing, though both are located in rural counties with a significant agricultural component to their economies.

Neighbors of the D Livestock, Inc. farm near Elizabeth have appealed the Indiana Department of Environmental Management’s approval for the expansion, which has delayed the issuance of a final permit.  Opponents also plan to file a lawsuit against the farm owners and their corporation.  The Jackson County permitting and zoning processes are not so far along, but neighbors are making similar arguments.

The assertions include the standard arguments: contaminated groundwater, other health risks, and lowering of property values.

The D Livestock, Inc. operation includes spreading manure over their own fields.  IDEM reviewed the application and approved the permit in March.  Thirty-three neighboring property owners to filed an appeal last month.  The appeal maintains that the farmland already is being used to apply manure and additional spreading will overload the capacity of the land.  The appeal also alleges that additional manure from 4,000 more hogs would harm surface water and groundwater and that there has been no engineering study supporting the permit.

The Office of Environmental Adjudication will hold a hearing.

D Livestock, Inc. has been in compliance since opening in 2007.  The Jackson County operation, if approved, will be new, though the county itself is host to roughly a half-dozen such facilities.

The EPA reached the final step for retail sale of E15 on June 15 by approving the first misfueling mitigation plans (MMPs) for individual companies. The agency’s approval of MMPs was the final step necessary to be cleared before E15 could be sold by retailers for use in 2001 and newer vehicles.

The agency’s approval was applauded by ethanol groups and the USDA as being a victory for American consumers and another step toward achieving energy independence.  

Agriculture Secretary Tom Vilsack said:

“The public has a right to choose between imported oil and homegrown energy and today’s action by the EPA advances that goal.  Today’s action demonstrates that the Obama Administration is making good on its commitment to work to reduce foreign oil imports and increase domestic energy production, including production of renewable biofuels. In addition, the EPA has fulfilled its responsibility to the American public to ensure that E15 is a safe and reliable fuel. Homegrown biofuels are providing sustainable rural jobs that cannot be exported. Today’s action proves yet again that renewable biofuels are not a dream of the future, but are a reality, and are making a difference today.”

The final issue delaying the EPA’s ultimate approval of MMPs was the agency’s concern over residual fuel left in the hose of a single hose pump, such as a blender pump, used to dispense E15 and other fuels. The agency’s concern was that a consumer who chose to use E10 directly after a consumer had purchased E15 from the same hose could actually receive fuel containing more than 10 percent ethanol because there might be residual E15 in the hose. According to the EPA, it consulted the Renewable Fuels Association and individual MMP submitters and determined that an addendum to the RFA’s E15 Retailer Handbook provided the necessary information to address that concern.

As practical matter this is more of a victory for the agricultual and ethanol industries than it is for the American consumer. The pressure placed on other segments of the ag industry - pork and beef producers particularly - by high corn prices pushes commodity costs higher across the board. Energy independence will not be achieved by approval of ethoanol fules and consumer savings at the pump will certainly be offset by higher food prices.

My wife's cousin - let's call him Dan - called me to discuss an environmental issue on his family's farm a few years ago. 

These are folks who farm several thousand acres in southern Indiana, so I was thinking it could be any number of things. But it wasn't anything I expected to hear.

As it turns out, one of Dan's farms lay adjacent to a conservation club.  The ground immediately adjacent to the club was far less productive than neighboring dirt. He attributed the lack of productivity to the club.

"What are we talking about here, Dan?"

"Well" he said, "you know how the club has its shooting range next to the farm - and you know all the outings, and the contests, and how the high school trap shooting team used the range for 50 years or more?. The buckshot lands in our field"

"Yea, I know that.  So what?"

"I think all that lead in the shot landing in our field has contaminated our ground. The crops won't grow."

Don't ever let it be said that farmers don't know their chemistry.  As it turns out, Dan was absolutley correct.  And we addressed the issue.  That's another insurance claim story for another post.

But I thought about that today as I read about a lawsuit filed yesterday in the DC District. My first thought was that we may have just another group of environmental organzations hugging a tree or two.  My second thought was my experience with Dan's case.

A group of conservationists sued the EPA on Thursday to force regulation of ammunition whcih indirectly kills endangered California condors.  The organizations assert that lead poisoning from ammunition kills not only condors but eagles, swans, loons and other birds that feed on dead animals in the wild. The lawsuit, filed in federal District Court in Washington, DC, asks the EPA to initiate a public process to determine whether that ammunition can be controlled. The complaint does not, however,  ask for a ban.

The Complaint is here.  Trumpeter Swan v. EPA.pdf

The same groups filed a petition with EPA and it responded in April - saying it does not have the authority under the Toxic Substances Control Act to regulate lead ammunition. Furthermore, the agency said the petition was similar to one filed by some of the groups in 2010 and declined to review the most recent one.

Lead poisoning has long been recognized as one of the leading causes of death of the condor. They once numbered in the thousands across North American but were nearly extinct in the early '80s.

So what have we learned?  We learned what we already knew.  Even indirectly, lead has consequences. No doubt this will become a political issue. It shouldn't - but it will.

The Sixth Circuit Court of Appeals has issued another environmental law decision this past week: The Nature Conservancy v. Sims.  The decision adddresses the violations of the terms of an easement grant.  Nature Conservancy v. Sims.pdf

In 2001, the Conservancy sold a 100.10 acre farm in Garrard County, Kentucky to the Sims for $60,084, in addition to a $244,939 charitable pledge from the Sims to the Conservancy.  The Sims appealed a district court order holding that they violated a conservation easement that was part of a real estate purchase agreement regarding The Nature Conservancy's sale and the Sims's purchase of the farm in Kentucky. The Sims had filled in a sinkhole.  The district court granted the Conservancy's summary judgment because filling in the sinkhole substantially altered the topography of the land. The district court awarded the Conservancy $99,796.41 in attorneys' fees, costs, and expenses and the Sims appealed both holdings.

The property appraised at $260,400 without the easement at issue, which requires that the land "be retained forever substantially undisturbed in its natural condition and to prevent any use . . . that will significantly impair or interfere with the Conservation Values of the Protected Property."

The Conservancy received an annual right to enter and inspect the property. In January 2005, the Conservancy inspected and documented several violations that concerned excavating and filling a sinkhole. The Sims corrected several other violations.

The district court granted summary judgment to the Conservancy, concluding that, although the easement allowed some changes to the topography in conjunction with authorized activities, like plowing for commercial agriculture, the easement specifically prohibited the substantial alteration of filling in a sinkhole with an estimated 6,269 cubic yards of fill. The court awarded the Conservancy $99,796.41 in attorneys’ fees and expenses. The Sixth Circuit affirmed.

The Appeals Court held that, "The district court properly ruled, however, that the Sims violated the plain language of the easement. The district court also did not abuse its discretion in awarding the Conservancy reasonable attorneys' fees and expenses." The real estate purchase agreement that included the conservation easement is at the heart of this litigation. Section 1 of the easement states that "the purpose of th[e] Easement [is] to assure that the Protected Property will be retained forever substantially undisturbed in its natural condition and to prevent any use . . . that will significantly impair or interfere with the Conservation values of the protected property." 

From the dissent: "My colleagues have overlooked . . . Section 3 of the easement agreement between the parties. This section allows the owner to engage in all normal rights of a landowner except those "expressly prohibited." The agreement does not expressly prohibit filling the sinkhole at issue. The sinkhole at issue was next to the defendant's home at his farm. It was an unsightly hole in the ground, a few feet deep, according to the pictures in the record, with half dead trees and brush growing out of it. Due to the irregular terrain, it could not be mowed, farmed, landscaped or used for a garden or anything else. It is an eyesore. . . No one in this case has attempted to show or describe what possible value the sinkhole has for purposes of historic and environmental preservation. . ."

So says the US District Court for the Eastern District of Pennsylvania in Travelers Property Casualty Company of America v. Chubb Custom Insurance Co., (ED, PA, Mar. 30, 2012).  

Maybe because I live on a farm. Maybe because I don't find such odors to be noxious. Maybe because I think that by the time we're done regulating rural areas, there won't be any place to raise farm animals. But this is just not a good result.

The insured is a Pensylvannia company that operates confined feeding hog farms in several states, including a facility in Indiana. The Indiana farrow to finish operation, Sky View Sow Unit, housed 2,800 hogs.  The facility collected the manure in a pit that was later land applied fertilizer. Here is the original complaint.  Travelers v. Chubb.pdf.

Neighbors sued, saying that the Sky View produced “harmful and ill-smelling odors, hazardous substances and contaminated wastewater” resulting in personal injury and property damage. Among other things, the complaint alleged that the “offensive and noxious odors” impaired plaintiffs’ use and enjoyment of their properties and caused “sudden onset” ailments, including nausea, vomiting, headaches, respiratory problems, irritation and aggravation of existing medical conditions.

Travelers and Zurich, which issued successive years of primary general liability coverage, denied coverage based on their policies’ respective total pollution exclusions, which in pertinent part applied to the “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants.’”

After its determination of a choice of law issue in which the court held that the policies were governed by Pennsylvania rather than Indiana law, it then confronted the issue of whether noxious odors fell within the policies’ definitions of “pollutants,” defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”

The court said that the issue of whether odors emitted from a large livestock facility are a pollutant was a matter of first impression under Pennsylvania law. The court therefore relied on several Pennsylvania cases applying standard dictionary definitions to the terms used in the definition of “pollutant.”  Relying on these definitions and cases, the court determined that:

. . . noxious odors produced by pig excrement (or waste) that cause bodily injury and property damage appear to fit squarely within the definition of pollutant under the policies. The fact that pig waste is spread over fields as fertilizer is of no moment, as “waste” includes materials left over from a production operation, and the policies’ definition of pollutant expressly includes waste that is to be reused.

Travelers and Zurich maintained that “simple odors cannot be pollutants.” Specifically, they argued that “because odors can be unpleasant or sweet, harmful or innocuous, the allegation of foul odors is too ambiguous to be construed as a pollutant barring coverage.”

The court rejected this argument. The court held that it is the "nature" of the odors, in relation to the harm, that determines whether it is a pollutant. So, noxious odors from a hog operation that allegedly resulted in injuries beyond mere nuisance, but actual bodily injury (i.e., nausea, vomiting, breathing difficulties, etc.), unambiguously fell within the definition of “pollutant.”

The court also rejected the insured’s argument that the exclusion did not apply because manure odors are commonplace in rural areas.

We know that over the past several years, courts have informed us that most of the language in the pollution exclusion clauses doesn't mean what we thought it meant.  We also understand that it is meant to afford the insured coverage - or at least a defense. But in this context, I disagree with the Pennsylvania court. Hopefully, we won't adopt same conclusion in Indiana.

This post has nothing to do with environmental law.  It has to do with life lessons learned, where we draw our inspiration from, and with continuous improvement. 

My youngest son was an outstanding high school pitcher.  At the end of his senior year, he suffered from a seriously torn labrum and rotator cuff.  Not knowing the extent of his injury, we went to a walk-on tryout at a pretty good D-2 baseball program (University of Southern Indiana) shortly after graduation.  He made the squad, despite the injury and the pain it caused him.  Jordan then attempted to pitch in his final American Legion season after high school graduation.  But he couldn't and we scheduled surgery.

In discussing the surgery with Dr. Gary Misamore at Methodist Sports Med, we asked how many pitchers come back from such a significant injury.  His response was that less than 50% return to pitch — and the greatest single factor was the work (and time) involved in rehab.  Most kids just quit.

It took Jordan nine months to be able to throw a ball again.  And nearly a year to throw with anything close to his prior velocity.  But he had no control.  He was devastated by the fact that many of his early efforts bounced 5 feet in front of the plate or went over my head.

He was red-shirted his freshman year (USI won the D-2 National Championship that year) but attended every practice and workout; During his sophomore year he dressed but never pitched, nor did he travel with the team; And he has pitched exactly 2 innings this season and now, as the season draws to a close, is on his first road trip as a college baseball player.

This kid has worked out for three seasons for a total of 2 innings pitched.  You ask why? His mother and I have asked the same question.  He has been frustrated, and occasionally angry, but through it all he has devoted himself to his "work".  He can again throw in the mid-80's, though conntrol is still an issue. He has developed a nasty change-up, and a solid slider.  He's nowhere close to where he wants to be as a pitcher, so he keeps working.  He won't quit.

So when we think about the stuff that inspires us as lawyers to do the things we do everyday, very often we need not look beyond our own families.  Sometimes our heroes occupy the bedroom just down the hall.  Jordan strives for continuous improvement as a baseball player.  How can I do less as either his father or as an adviser to my clients? 

I am far closer to the end of my career than the beginning.  But lawyers never stay the same — we either get better or we get worse.  One of the reasons for this blog is to become a better lawyer.  To do less than that means I haven't learned what my son knows at the age of 21.

The Indiana Department of Environmental Management says it has added a new agricultural liaison responsible for managing the agency's relationship with farms and ag-related businesses, groups and agencies.

The agency announced Wednesday that the liaison, Steven Howell, also will advise the agency about federal, state and local agriculture-related trends and issues.

IDEM say Howell has experience in agriculture and conservation as a congressional aide and as a field representative with Indiana Farm Bureau. He was also part owner and operations manager of a family grain and livestock operation in Jay County.

The Office of Indiana State Chemist will continue to accept comments from the public until Jan. 7 on a proposed state-mandated rule regulating use of fertilizers on farms.

The proposed rule was developed by a committee composed of representatives of the OISC, the livestock industry, farmers, members of the Fertilizer Advisory Board, Purdue University faculty and the Indiana Department of Environmental Management. The requirements are designed to keep fertilizer material out of waterways and wells and be consistent with IDEM regulations involving water contamination.

The OISC will consider the comments in finalizing its rule and submit it to the Indiana attorney general for review. The rule then would go to the governor for signature and become effective one year later.

The state Legislature charged the OISC with the task of developing the requirements. The proposed rule specifies how fertilizer can be safely stored on farms until its use – called staging – and how far from waterways and wells it can be applied and under what conditions, such as weather.

“This is a baseline document – not necessarily an ending point but something that hopefully will be a basis for future needs as they are defined,” said State Chemist Robert Waltz. “We feel that this is a very positive step. Without this, there is no regulation in this subject area.”

“The idea is that the standards of IDEM and the OISC would be very similar or identical so that there wouldn’t be two different sets of rules, which could cause confusion,” Waltz also said.

Licensed distributors and applicators of inorganic and organic fertilizer, including livestock and poultry manure, would be required to keep records on the amount of fertilizer distributed and where it was applied, among other information.

The state chemist’s office held a public hearing on its proposed rule, LSA Document 11-364 creating rule 355 IAC 8, on Dec. 6 at Purdue University. Comments now will be accepted only in writing.

The proposed rule can be found here or located through the link provided on the State Chemist’s website.

The Hoosier Environmental Council (HEC) and the Legal Environmental Aid Foundation (LEAF) are merging and will continue operations as the Hoosier Environmental Council.  The announcement was made on Monday, December 5, 2011.

The move allows the Hoosier Environmental Council to expand operations in Northwest Indiana, with the opening of an office in Valparaiso.  LEAF has a substantial presence in the Region.  HEC’s headquarters will remain in Indianapolis.

"Through previous successful partnerships, HEC and LEAF have discovered there is a great deal of synergy in our missions, staff, services to the public, and reach throughout the state of Indiana," said Jesse Kharbanda, HEC Executive Director. "By joining forces, our organization will be able to better educate and advocate for solutions that better protect our air, water, and wilderness, while making our state more economically prosperous."

Kim Ferraro, former LEAF Executive Director, will assume the role of Water and Agricultural Policy Director for HEC.

HEC’s long suit has been environmental policy development and legislative advocacy.  LEAF has developed more expertise in providing technical legal representation and assistance to communities trying to balance economic development and environmental protection.

"A balanced environmental policy that promotes sustainable development and environmental preservation is essential for improving quality of life among Hoosiers," Ferraro said. "Combining our strengths will expand the capacity of our new organization to ensure public interests, not special interests, drive environmental policy and land use decisions which will make our state a better and safer place to live, work and play."

Kim Ferraro, former LEAF Executive Director, will assume the role of Water and Agricultural Policy Director for HEC. HEC will open up a third office in Valparaiso.

A good move for both organizations.

The Environmental Protection Agency does not intend to revise air quality standards for “coarse particulate matter” - more commonly know as farm dust to those of us living in rural Jackson County - in a new proposed rule.  So says EPA Administrator Lisa Jackson.

Farmers and legislators throughout the Midwest have expressed concern that the Environmental Protection Agency would impose stricter rules on particulate matter, (farm dust) created by normal farming practices like combining crops, tilling land or even driving on gravel roads.

Despite assurances by EPA officials that dust created by agricultural practices was not an issue, inconsistent information caused legitimate concern.  For example, the Clean Air Scientific Advisory Committee recommended the primary standard for coarse particles should be revised “to increase public health protection”. This report was released last April.

The EPA is currently reviewing its National Ambient Air Quality Standards for particulate matter. Agency Administrator Lisa Jackson said she can live with the status quo.  Jackson issued a letter saying she's prepared to propose the retention of current standards.

The "EPA hopes this action finally puts an end to the myth that the agency is planning to tighten this regulation, which has been in place since 1987," said EPA spokesman David Bryan.

Sen. Mike Johanns (R-Neb.), who had previously introduced legislation to remove farm dust from national standards for particulate matter, called EPA's announcement “a victory for farmers and ranchers.”  But Jackson's letter did not satisfy Rep. Kristi L. Noem (R-S.D.), who sponsored a House version of the farm dust bill. She says it's because the EPA is still able to regulate farm dust.  Congressman Noem is a freshman legislator who achieved her high office with the rise of the Tea Party in 2010. The Washington Post has called Noem a "a made-for-Fox News star" and compared her to Sarah Palin.  No more explanation required.

National ambient air quality standards for particulate matter do not target pollution from specific sources or activities.  The Clean Air Act requires the EPA to review and revise air quality standards every 5 years.  The current standards for coarse particulate matter, called PM-10, are 150 micrograms per cubic meter of air.

Jackson sent letters to Sens. Debbie Stabenow (D-Mich.) and Amy Klobuchar (D-Minn.) that propose the retention—with no revision—of the current PM-10 standard. EPA Administrator Lisa Jackson's letter can be found at http://epa.gov/pm/pdfs/20111014Stabenow.pdf.

The Environmental News Service reports that after several years of research, scientists have proven that a fungus (geomyces destructans) causes white-nose syndrome, a deadly bat disease.

White-nose bat disease is a skin infection that often begins around the muzzle, but exactly why it results in death is still unknown.

Research published in the journal Nature provides the first direct evidence that this fungus is responsible for the disease that is responsible for the destruction of bats in North America, including the Indiana little brown bat.

So why do we care? Hopefully, this study will help bat conservation.  This is important to Indiana's farm community because insect-eating bats save the American agricultural industry billions of dollars each year in insect-control expenses.

U.S. bat populations have been declining since 2006, when white-nose syndrome first appeared in New York State. Since then, the fungus has spread southward and westward and has now been found in 16 states as far west as Indiana. Bat declines in the Northeast, the most severely affected region in the United States, have already exceeded 80 percent.

The Indiana Corn Marketing Council (ICMC) says a new study demonstrates that the ethanol industry in Indiana continues to grow. ICMC says that Indiana’s 13 operating ethanol facilities are responsible for creating 3,486 jobs and are generating $3.2 billion is sales and revenue.

Indiana is now the nation’s fifth largest ethanol producer, producing 7.5 percent of all ethanol nationwide.  The Informa Economics study also found that ethanol production contributes nearly $500 million to Indiana’s gross state product (GSP).

In addition, the industry paid $45 million annually in state and local taxes and has invested nearly $1.5 billion in direct capital investments to build the state’s ethanol manufacturing base since 2006

The Indiana Corn Marketing Council was established by the Indiana General Assembly to promote the interest of corn growers in Indiana and manage corn check-off funds. The Council is composed of 17 voting producer directors and seven appointed industry, and government representatives.

A bill to repeal ethanol tax incentives was defeated in the US Senate by a vote of 59 to 40.  The legislation, sponsored by Senator Tom Coburn of Oklahoma, would have put an immediate end to the 45-cent ethanol blenders’ tax credit and 54-cent ethanol import tariff.

Iowa Senator Charles Grassley said the Coburn amendment was a politically charged attempt to undermine efforts to reduce the country’s dependence on foreign oil.

Senators from ethanol-producing states are now expected to bring forward a new bill that would phase out the blender’s credit and import tariff, while increasing a tax credit for ethanol blender pumps at gas stations. Grassley says he supports that legislation, which establishes a variable rate tax credit.  He says it differs somewhat from the bill he introduced with Senator Kent Conrad in May. 

The Senate vote to end the ethanol blenders’ credit and import tariff was viewed as largely symbolic. 

During Senate debate on the bill, South Dakota Senator John Thune argued it was a waste of time.  “This vote today in going to be a largely symbolic vote, for reasons I just mentioned.  It’s unconstitutional—it will be blue-slipped by the House of Representatives—and therefore it makes absolutely no sense for us to be having this vote in the first place,” Thune said, “and it certainly doesn’t make any sense for us to be sending a message to this industry that we want to do away with it.”

The White House opposed the Senate bill.  However, some political observers believe that the Senate’s action, combined with the House vote to block federal funding of ethanol blender pumps is a sign of the waning support for ethanol subsidies in Congress.

On April 6, 2011, 21 groups joined to file a petition with the EPA requesting an “endangerment finding” under Section 202 (a) of the Clean Air Act for ammonia gas.  The organizations are demanding that the EPA list ammonia as a Clean Air Act criteria pollutant. The criteria pollutant program requires EPA to establish air quality standards to protect public health and the environment.

The petitioners contend concentrated animal feeding operations (CAFOs) are the nation’s leading source of ammonia pollution, which causes respiratory health problems even at very low levels.

The effort is led by the Environmental Integrity Project (EIP), and includes a diverse group of organizations that advocate for environmental protection, public health, animal welfare, and rural economies and communities. They include the Bloomberg School of Public Health’s Johns Hopkins Center for a Livable Future, the Sierra Club, the Humane Society of the United States, the Waterkeeper Alliance, and rural community organizations in California, Illinois, Iowa, Michigan, New Mexico and Wisconsin.

On March 9, 2011, EIP released a report purportedly demonstrating that CAFOs emit hazardous air pollutants on an industrial scale.  EIP states that it reviewed the findings of an industry-funded EPA study that monitored ammonia, particulates, hydrogen sulfide, and volatile organic compounds from CAFOs across the country. The report says that ammonia pollution levels at some facilities exceed worker health recommendations and emissions reporting thresholds, and recommended that EPA begin regulating ammonia and other CAFO emissions under the Clean Air Act.

The petition filed with EPA states: 

“Congress enacted the Clean Air Act (CAA) to protect public health from diverse sources of air pollution, and empowered the Environmental Protection Agency (EPA) to establish regulations for different pollutants as scientific knowledge evolves, and the dangers they pose to human health and welfare become apparent … [A]mbient ammonia pollution currently endangers human health and welfare, and EPA has an affirmative obligation to exercise its authority to regulate sources of ammonia emissions … Ammonia gas, an air pollutant emitted in vast quantities by Concentrated Animal Feeding Operations (CAFOs), meets the criteria for listing as a CAA criteria pollutant, because ammonia emissions from numerous CAFOs and other sources ‘cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”

 No timetable has yet been set for acting on the petition.

As if we don't have enough of our own: apparently we need manure from Ohio. Go figure.

In a widely reported story by Rick Callahan of the Associated Press, and carried in most of the major news outlets, eastern Indiana residents are upset about poultry manure trucked in from Ohio.

Residents blame manure by-products, particularly ammonia and dust, for breathing problems, odor, and potential water contamination. The effort to cleanup an Ohio lake, Grand Lake St. Marys, has angered some Indiana residents because it is resulted in shipments of manure from Ohio.

Ohio livestock farmers have sold their manure to Indiana crop farmers as a natural fertilizer that's significantly cheaper than commercial fertilizers. Ohio offered livestock farmers a new incentive under a U.S. Department of Agriculture subsidy program.  One of the markets for the out-of-state manure is eastern Indiana.

The program partially covers the cost of shipping manure out of the Grand Lake St. Marys watershed. Officials took the action after manure runoff from fields was largely blamed for causing the shallow, 13,000-acre lake to become tainted with toxic blue-green algae.

At this point, Indiana has no authority to stop or regulate the manure imports, Bruce Palin, the Indiana Department of Environmental Management's assistant commissioner of land quality, said Indiana's regulations only cover manure produced by in-state livestock farms.

IDEM is reportedly considering new rules that would apply the same regulations to out-of-state manure as waste produced on Indiana farms.