Class 26 October 21, 2002

1
Class 26 October 21, 2002

• Homework 4 due
• Quiz 8 back?
• Recitation
• United States Lee Stanish Eliz. Sturgeon
  
• Woodbury Michael Veld Betsy Villcock
• Processing p. 238 Nathan Fleck Richard
  Dobbyn
• Papas, p. 243 - Andrew Eller Chris Geswein

2
Quiz 9

• 1. Section 404 of the federal Clean Water law
  may restrict the dredging of a man-made ditch.
• 2. A county drainage board may
• a. Clear a drain stoppage on private property.
• b. Can preempt the authority of the Army Corp.and
  IDNR
• c. Both a. and b.
• 3. Common enemy rule in dealing with land
  surface drainage has been the law in Indiana.
• 4. The manufacturer of a chemical is not liable
  for miss application of a chemical. 
• 5. Federal law makes soil conservation practices
  for some producers a requirement for price and
  income support payments?

3
U.S. v. Akers, U.S. Ct. of Appeals, 9th Cir. 86

• Action?
• Issue?

4
U.S. v. Akers

• Holding?
• Rule/Law?

5
U.S. v. Akers

• Action Wetlands protection
• Issue Can Akers convert wetlands?
• Facts
• Holding
• Law

6
U.S. v. Akers

• Facts Akers bought 9,600 acres of which 2,889
  acres were wetlands.
• COE learned of Akers plan to convert the
  wetlands to farmland by grading, leveling
• see text page 228
• Injunctions issued against Akers activities
• Holding Injunction against Akers was affirmed.

7
Soil and Water Conservation

• 1936 Standard State Soil Conservation District
  Law
• Lead to soil water conservation districts in
  all 50 states
• SWCs set up programs with land owners to adopt
  subsidized soil and water conservation plans,
• Generally, state laws had no penalties for
  failure to comply.
• Iowa was an exception.
  

8
Woodbury County SC Dist v. Ortner, S. Ct. of Iowa
79

• Action?
• Issue?

9
Woodbury County SC Dist

• Facts
• Holding
• Law/Rule

10
Woodbury County SC Dist

• Action Compliance with local soil conservation
  law.
• Issue Is this soil conservation law an
  unconstitutional taking from the farmland owners
  or a regulation under the police power of the
  state?
• Facts Ortner and another were in violation of
  soil conservation law.
• SCD issued an order to comply.
• Ortner failed to act in time.

11
Woodbury County SC Dist

• Holding Reversed the trial courts holding for
  the def., and decided the policy for soil
  conservation was valid.
• Conservation law is constitutional.
• The laws provisions are reasonably related to
  carrying out an announced legislative purpose of
  soil conservation.
• For the protection of leading industry--a proper
  exercise of police power.
  

12
1985 Food Security Program

• 1. Sodbuster -- restricts the conversion of
  highly
• erodible land to crop production.
• 2. Swampbuster -- restricts the conversion of
  wetlands
• to cropland.
• 3. Conservation compliance -- requires the
  development and implementation of a plan for
  lands that are highly erodible (HEL)
• a plan by 90, and in place by 95
• the NRCS staff (formerly SCS) determine which
  land and which practices are acceptable.
• Violation of the above brings loss of spcified
  benefits from various federal programs.
  

13
1985 Food Security Program

• 4. Conservation Reserve program -- a voluntary
  land retirement program for the most erosive
  cropland for 10 year periods for a rent per
  acre
• farmers offer their acres at a price, and the
  program authorities elect to accept or not
• once in the CRP, no crops including hay or
  grazing is permitted
• unless with the express permission of the USDA

14
Govnt Program Up-to-date

• The 1990, and 1996 legislation continues these
  programs.
• Criteria for CRP with the last round of
  legislation to favor lands that promotes cleaner
  water.
• The 2002 Legislation maintains and expands on
  environmental provisions.
• See Lovejoys item in the June PAER a handout
  Details at http//www.ces.purdue.edu/farmbill/CES
  -344.pdf
• The 2002 Farm bill is budgeted at approximately
  180 billion over 10-year period.
• Conservation provisions received 17 billion of
  the 180 billion

15
Conservation Program Acronyms

• CCEP Comprehensive Conservation Enhancement
  Program
• CRP Conservation Reserve Program
• CSP Conservation Security Program
• EQIP Environmental Quality Incentive Program
• FPP Farmland Protection Program
• GRP Grasslands Reserve Program
• NRCS Natural Resources Conservation Service
• USDA U.S. Department of Agriculture
• WHIP Wildlife Habitat Improvement Program
• WRP Wetland Reserve Program

16
Conservation Security Program

• New and different approach to conservation
• For a broader segment of the agricultural
  community by including all commodity producers.
• Rewards those producers who presently maintain or
  agree to begin a more sustainable production
  system.
• It shifts the distribution of payments
  geographically, by commodity, by size of
  operation.

17
Air Pollution

• Agriculture contributes to air pollution
• But, to a much less extent than large urban and
  industrial areas
• Clean Air Act establishes national air quality
  standards, and states also have separate
  standards that may exceed the federal standards,
  e.g., Calif.
• States enforce air quality standards
• Agricultures biggest concern may be odor problems

18
Processing and Books, Inc. v.Pollution Control
Board. S. Ct. Ill 76

• Action?
• Issue?

19
Processing and Books, Inc.

• Facts
• Holding
• Rule/Law

20
Processing and Books, Inc.

• Action to enforce a fine, and cease and desist
  order
• Issue Is the agency within its capacity under
  the statute to levy a fine, and a cease and
  desist order?

21
Processing and Books, Inc.

• Facts
• An egg farm was fined and ordered to cease and
  desist for air pollution due to manure, and
  incinerating chickens.
• Operation was in an area zoned for ag uses.
• A 300,000 layer operation.

22
Processing and Books, Inc.

• Holding The offense for which the def was
  charged is in the Illinois Environmental
  Protection Act
• Air pollution is defined as the presence in the
  atmosphere of one or more contaminants in
  sufficient quantity, and of such characteristics,
  and duration as to be injurious to human, life,
  to health, or to property, or to unreasonably
  interfere with the enjoyment of life or property.

23
Processing and Books, Inc.

• Holding determination of a violation the board
  must consider
• 1. All facts and circumstances bearing on the
  emissions
• 2. Social and economic value of the source
• 3. Suitability of the source in the area it is in
• 4. Technical practicability and economic
  reasonableness of reducing or eliminating the
  emission

24
Processing and Books, Inc.

• Holding While the def had significant economic
  value,
• a serious odor problem was documented
• Odor came from the fields where the manure was
  spread, from large holding tanks, from manure
  treatment facilities, and incineration of about
  175 chickens a day.
• What is unreasonable must be beyond what is
  trivial.
• The agency fine and order were within their
  discretion.

25
Other Areas of Concern

• Air Pollution
• Organic compounds and particulate matter in the
  air
• Open burning is regulated
• Noise pollution
• Pesticide regulation in ag production

26
Pesticide Regulation

• Federal Rules Started with a 1910 act which
  prohibited the manufacture or sale of
  adulterated, misbranded insecticides, and
  fungicides.
• In 1947 the Federal Insecticide, Fungicide, and
  Rodenticide Act (FIFRA) was enacted.
• 1972 revisions now provide for general and
  restricted use chemicals.
• And for certification of applicators.
• See handout on Pesticide Spray Liability for
  statutes.

27
Pesticide Regulation

• Classification All pesticides must be registered
  with the EPA
• Pesticides must meet their claims, and not have
  substantial adverse effects on the environment
  when properly used.
• Manufacturers must establish the benefits and
  safety of the pesticide with appropriate data
  before they may be registered.

28
Pesticide Regulation

• Certification of Applicators
• Certification in Indiana and other states is by a
  state program approved by EPA.
• Purdue CES has conducted a training and
  certification program for many years.
• Private applicators are certified to use
  restricted use pesticides for producing
  agricultural commodities on property owned by
  their
• employer or on property of another person if on
  a share help basis.
• Commercial applicators refers to all other
  applicators -- who may be specialized in their
  use of chemicals.

29
Pesticide Regulation

• Worker protection
• OSHA regulations deal with worker protection
  requirements, e.g.,
• time limits on entering application areas
• protective clothing
• emergency supplies

30
Pesticide Regulation

• State Regulations
• States may have specific applicator requirements
  such as bonding or liability insurance.
• Indiana has a requirement, at
• IC 15-3-3.6 (see HO,Pesticide Spray Drift
  Liability Law, App. A)
• Use permits are required in Calif.
• Note, a locality can limit the application of
  pesticide.
• Indiana requires a local ordinance restricting
  pesticide use
• to be approved by the Indiana Pesticide Review
  Board.
• See IC 15-3-3.5-12
• This as a 90s law intended to avoid Mortier
  case from Wisconsin.    

31
What is the role of the pesticide investigator?

• After receiving a complaint, an investigator will
  contact pertinent individuals to conduct
  inspections and/or interviews.
• The investigator will document the incident
  through maps, photographs, affidavits, pesticide
  label reviews, and on-site assessments.
• The investigator will focus on whether a
  violation of state or federal pesticide law has
  occurred.
• The investigator's observations will be compiled
  into a case summary of the incident.

32
Role of the pesticide investigator?

• The investigator may also collect physical
  evidence such as soil,
• vegetation, and water samples to aid in the
  determination of any violations of the pesticide
  laws.
• Physical samples are not taken in every
  investigation.
• The investigator will determine if samples might
  be useful and admissible in any enforcement
  proceeding.

33
Papas v. Upjohn Co., U. S. Ct. of Appeals, 11th
Cir., 91

• Action?
• Issue?

34
Papas

• Facts
• Holding
• Rule

35
Papas

• Action Negligence, strict liability and breach
  of an implied warranty of merchantability.
• Issue Does FIFRA preempt the claim?

36
Papas

• Facts Pl complains of health problems from a dog
  insecticide by Upjohn.
• The basic charge was inadequate labeling.
• Upjohn/Zoecon argued they had satisfied FIFRA and
  a claim is preempted.
• District court granted def a summary judgment.

37
Papas

• Holding Lower court upheld.
• Preemption is based on the supremacy clause of
  the U.S. Constitution. Preemption can be
  inferred
• 1. If there is an outright conflict.
• 2. If compliance with federal state law is
  physically impossible.
• 3. If there is an implicit barrier in federal law
  to state regulation.
• 4. If Congress legislated comprehensively, thus
  occupying an entire field no room for states to
  add to federal law.
• 5. If the state law stands as an obstacle to the
  full objectives of Congress.

38
Papas

• Under FIFRA, the federal government (EPA) has the
  sole and exclusive right to regulate pesticide
  labels.
• FIFRA impliedly preempts state common law tort
  actions based on labeling claims in several ways.
• Feds have preempted the entire field of label
  regulation, leaving no room for states even for
  common law suits.
• Uniform labeling across the country is one strong
  argument.

39
Papas

• The Label
• For EPA-registered pesticides, the warning and
  use statements present on the label indicates
  that those statements are adequate to protect man
  and the environment
• That the pesticide as labeled does not pose any
  unreasonable risk to man or the environment,
  taking into account the economic, social, and
  environmental costs and benefits of the use of
  any pesticide.

40
Hazardous Substances Waste Disposal

• Resource Conservation and Recovery Act, 76
• RCRA deals with the identification,
  transportation, treatment, storage, and disposal
  of hazardous waste. (See current handout
  articles.)
• EPA not only was required to identify hazardous
  wastes, but also to establish regulations to
  monitor and control hazardous waste storage and
  disposal.
• In 1980, Comprehensive, Environmental Response
  Compensation, and Liability Act
• CERCLA, (Superfund) was amended by SARA in 86

41
Superfund

• EPA may force clean-up of hazardous waste sites.
• Potentially Responsible Parties (PRPs) may be
  both current and past owners or operators of a
  site, and those who benefited from the use of the
  site.
• Innocent landowner(IL)--a major defense
• A buyer gets IL status if all appropriate
  inquiry was conducted before acquisition of the
  property to discover any potential for
  environmental contamination
• A purchaser has strong incentive to audit
• Note Brownfields movement in the last 10 years.

42
Regulation of Research in Biotechnology

• Regulations are needed to control experiments in
  biotechnology.
• Ethical concern for the species and the moral
  questions involving mans right to tamper with
  nature.
• What are the long term societal effects?

43
Natl. Inst. Of Health

• Sets rules for the projects it funds.
• USDA has established processes for safety and
  risks involved in bio-technologically developed
  or altered products or organisms.

44
Minerals , Timber, and other NaturalResource Use
Problems

• Numerous rules and regs apply to oil, gas, coal
  exploration and mining.
• Indiana DNR has divisions for oil gas as well
  as coal in the state regulatory government.
• Indiana Geological Survey at Bloomington has a
  lot of data relating to natural resources.

45
Minerals , Timber, and other NaturalResource Use
Problems

• Considerable leasing activity for gas, oil,
• coal and even shale a few years ago.
• HO on Leasing mineral interests by G. Harrison
• There are many considerations for farming around
  such activity, and for maintenance of the land.

46
Minerals , Timber, and other NaturalResource Use
Problems

• Law of mineral leases
• A mineral rights estate may be severed from the
  fee, e.g.
• gas oil lease
• coal lease
• Provisions to consider
• How the land is to be used, accessed
• Compensation or royalty for minerals removed
• Initial bonus payment
• Time frame of activity

47
Minerals , Timber, and other NaturalResource Use
Problems

• Surface Mining--Federal Legislation
• Surface Mining Control and Reclamation Act of 77
  --requires the restoration of land once strip
  mining is complete.
• 1. Back to original contour
• 2. Control erosion and pollution
• 3. Separate top soil, and restore
• 4. Create water impounding
• 5. Seal auger holes to prevent drainage
• 6. Stabilize waste piles

48
Surface Mining Control and Reclamation Act of
77, cont.

• 7. Refrain from surface mining with in 500 ft of
  an underground
• mine
• 8. Construct access roads to prevent erosion,
  pollution, and
• damage to water flow
• 9. Blast only after notice
• 10. Establish a vegetative cover
• 11. Protect off site areas from slides, etc.
• 12. Dispose spoil to prevent mass movement and
  soil erosion
• 13. min. disturbance to the hydrologic balance
• prevent pollution with acids,etc
• and restore recharge capacity

49
Timber

• Federal and State Assistance
• See NCRS staff in the FSA office
• Forest specialists available
• Indiana allows a 1 assessment for lands
  designated as permanent forests.
• Timber Cutting Contracts
• Tax law is important--See Bill Hoovers Forest
  Owners Guide to Federal Income Tax USDA, Ag
  Handbook, No. 708