Fiscal Note & Local Impact Statement
125 th General Assembly of Ohio
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BILL: |
DATE: |
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STATUS: |
SPONSOR: |
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LOCAL IMPACT
STATEMENT REQUIRED: |
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STATE FUND |
FY 2004 |
FY 2005 |
FUTURE YEARS |
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General Revenue Fund |
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Revenues |
- 0 - |
- 0 - |
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Expenditures |
Potential increase |
Potential increase |
Potential increase |
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Fund 5L8 (Livestock
Management Program) |
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Revenues |
Potential minimal gain |
Potential minimal gain |
Potential minimal gain |
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Expenditures |
- 0 - |
- 0 - |
- 0 - |
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Note: The state
fiscal year is July 1 through June 30.
For example, FY 2004 is July 1, 2003 – June 30, 2004.
·
There
is a potential for increased expenditures due to additional public notice and
comment requirements with respect to the Director of Agriculture’s denial,
suspension, or revocation of a permit to install, permit to operate, or
National Pollution Discharge Elimination System (NPDES) permit. The amount of the increase will be dependent
upon the number of permit denials, suspensions, or revocations, as well as the
number of public meetings held.
·
Currently,
there is a prohibition against discharging manure from a point source into
waters of the state without first obtaining a NPDES permit. This provision is retained, however, the
bill adds that a concentrated animal feeding operation CAFO is deemed to be a point
source that discharges manure into Ohio waters, unless the Director has
determined that there is no potential to discharge for the CAFO. Also, provisions are added that specify when
a small or medium CAFO shall be permitted. As a result of these changes, there
could be an increase in NPDES permits issued.
However, the Department estimates that these increases in revenues would
be minimal.
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LOCAL
GOVERNMENT |
FY 2003 |
FY 2004 |
FUTURE YEARS |
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Counties and
Municipalities |
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Revenues |
- 0 - |
- 0 - |
- 0 - |
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Expenditures |
Potential minimal increase |
Potential minimal increase |
Potential minimal increase |
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Note: For most local governments, the fiscal year is the calendar year. The school district fiscal year is July 1 through June 30.
·
The
bill expands the categories of violations for which the Director may assess a
civil penalty against the owner or operator of a concentrated animal feeding
facility. This may result in additional civil cases. However, the Department does not expect this to be the case since
the Department typically pursues administrative measures. Also, the bill does not expand the
Department’s ability to pursue civil penalties by much. Minimal court costs and fees may result for
municipal and county courts, as a result of additional civil cases.
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According to the Department
of Agriculture, the provisions within this bill were made because of changes in
the Federal Clean Water Act Rules, which became final on April 14, 2003.
With the implementation of
Sub. S.B. 141 of the 124th General Assembly, the Livestock Environmental
Permitting Program was established within the Department of Agriculture. Previously, the Ohio Environmental Protection
Agency (OEPA) was responsible for permitting, inspection, and enforcement of
environmental protection and nuisance prevention regulations governing
livestock and poultry farms of 1,000 animal units or larger.
Under current law, no person
shall discharge manure from a point source into waters of Ohio without first
obtaining a NPDES permit. The bill
specifies that a concentrated animal feeding operation (CAFO) is deemed to be a
point source that discharges manure into the waters of the state unless the
Director has determined that the CAFO has no potential to discharge manure into
the waters of the state. If an owner or
operator of a CAFO receives notice from the Director that the CAFO has no
potential to discharge manure, the owner or operator is not required to apply
for an individual NPDES permit or for coverage under a general NPDES permit for
that operation. The Director’s
determination shall be made in accordance with rules. The Department stated that this change is being done to comply
with the federal rule changes. The cost
of the federal NPDES permit is $250 for a five-year period. This may slightly increase the number of
NPDES permits since a CAFO is deemed to be a point source that discharges
manure into the waters of the state unless the Director has determined
otherwise. The Department does not
think that this increase will be significant.
The bill specifies that if
an owner or operator of a CAFO receives notice from the Director that the CAFO
has no potential to discharge manure, the owner or operator is not required to
apply for an individual NPDES permit or for coverage under a general NPDES
permit for that operation. According to
the Department, each proposed facility application is reviewed prior to permitting. If a facility requests a "no potential
to discharge determination" for a NPDES permit exemption, the
determination will be done in conjunction with the review and issuance of a
state permit to install and operate.
The bill eliminates the term
“animal unit” and instead uses the terms small, medium, and large CAFOs. The determination of small, medium, and
large CAFOs is based on the number of animals that are stabled or confined. The bill lists in detail the numbers of each
type of animal. Currently an animal
unit is defined as a unit of measurement consisting of formulas that are
designed to determine the number of various livestock animals that are
necessary to produce an amount of waste that is equal to the amount of waste
produced by one slaughter or feeder cow.
A facility with more than 1,000 animal units is considered a CAFO and
may be required to obtain a NPDES permit.
Under the bill, a NPDES permit is usually required for a large CAFO and
may be required for a medium or small CAFO under select circumstances. Medium or small CAFOs may be required to be
permitted when all of the following apply:
·
The
Director has received from the Chief of the Division of Soil and Water
Conservation in the Department of Natural Resources a copy of an order issued
that specifies that the facility has caused agricultural pollution by failure
to comply with standards and that the animal feeding facility therefore should
be required to be permitted as a medium or small CAFO;
·
The
Director has inspected the facility;
·
The
Director finds that the facility is not being operated in a manner that
protects the waters of the state.
If an animal feeding
facility is required to be permitted as a result, the owner or operator of the
facility shall apply to the Director for a permit to operate as a CAFO. In a situation in which best management
practices cannot be implemented without modifying the existing animal feeding
facility, the owner or operator of the facility also shall apply for a permit
to install. Also, if any facility (that
is required to be permitted under this section) corrects the problems that
caused it to be permitted, a permit to operate shall not be required after the
end of the five-year permit term.
The bill also makes changes
to the definitions of other terms.
The Department anticipates
that the number of permits issued should not vary significantly with the change
in the definitions of CAFOs. However,
the program is new to the Department, so there is no history to base these
statements on. Also, the permitting of
certain small or medium CAFOs will result in few additional permits. This is due to the fact that the Department
is currently working in conjunction with the Division of Soil and Water
Conservation and county soil and water conservation districts to minimize the
need to permit these facilities. The
small and medium CAFOs will be permitted if the facilities refuse to come into
compliance voluntarily after providing technical and financial assistance.
The bill also makes other
changes regarding regulation. The bill
states that an owner or operator of a facility shall not be required by any
political subdivision of the state, or any officer, employee, agency, board,
commission, department, etc. of a political subdivision to obtain a license,
permit, or other approval pertaining to manure, insects or rodents, odor, or
siting requirements for installation of an animal feeding facility if the
facility has any of the following:
·
a
permit to install
·
a
permit to operate
·
a
review compliance certificate
·
a
NPDES permit
·
an
operation and management plan that is approved by the Chief of the Division of
Soil and Water Conservation in DNR or by supervisors of the appropriate soil
and water conservation district.
This provision clarifies
that CAFO regulation shall fall under the Department of Agriculture.
There is
also a provision that states that if a manure management plan is submitted to
the Department of Agriculture that does not conform with best management practices
regarding the handling, storage, transportation, and land application of manure
generated at the facility, the director shall deem that the plan conforms with
best management practices if the owner or operator does all of the following:
·
performs
a phosphorous index risk assessment procedure or a phosphorous soil test risk
assessment procedure in accordance with rules;
·
demonstrates
that the facility cannot comply with best management practices before the date
on which the review compliance certificate is to be issued;
·
includes
in the manure management plan an implementation plan under which the facility
will comply with best management practices on or before December 31, 2006.
The Department anticipates
that this provision will have little or no fiscal impact. It mirrors federal rules in that it allows
facilities to have a few years to come into compliance.
Under current law, a permit
to install must be obtained prior to the construction or modification of a
concentrated animal feeding facility (CAFF).
A permit to operate also must be obtained and kept current for the
operation of a CAFF. Current law also
establishes public notice and comment provisions with respect to the draft
permits. The denial, modification,
suspension, or revocation of a permit to install, permit to operate, or NPDES
permit without the consent of the applicant or permittee must be preceded by a
proposed action stating the Director’s intention to issue an order with respect
to the permit and the reasons for it.
The bill additionally requires the Director to mail the applicant notice
of the Director’s proposed action to deny, suspend, or revoke a permit to install,
permit to operate, or NPDES permit. The
Director also must publish the notice once in a newspaper of general
circulation in the county in which the CAFF or CAFO is located. The Director must mail a copy of the notice
of the proposed action to the board of county commissioners of the county and
to the board of township trustees of the county in which the CAFF or CAFO is
located. The Director also must provide
notice of the Director’s proposed action to deny, suspend, or revoke a permit
to install, permit to operate, or NPDES permit to any other person that is
entitled to notice under the Federal Water Pollution Act. The Director must schedule one public
meeting to provide information to the public and to hear comments pertinent to
the proposed action. The notice of the
public meeting must be provided in the same manner as the notice of the
Director’s proposed action.
The additional requirements
for public notice and the comment opportunity for denial, suspension, or
revocation of permits may result in increased expenditures for the Department.
In regards to civil
penalties, the bill adds that the Director may assess a civil penalty if it is
determined that the owner or operator is not in compliance with statutory law
governing permits to install, permits to operate, or review compliance
certificates or rules governing permits to install or permits to operate. This expands the categories of violations
for which the Director may assess a civil penalty against the owner or operator
of a concentrated animal feeding facility, which may result in additional civil
cases. However, the Department does not
expect this to be the case since the Department typically pursues
administrative measures rather than civil measures. Also, the bill expands the Department’s ability to pursue civil
penalties only by a limited amount.
LSC fiscal staff: Wendy Risner, Budget Analyst