Now is a good time to consider the legal liabilities associated with managing animal waste, and to ensure that measures are in place to address liability issues. The following offers a brief review of the laws that affect liability for discharges, spills, odors and other problems resulting from manure handling.
Whose Manure?
A question I frequently hear is “who is liable for the manure – the landowner, the livestock producer or the manure applicator?” As with many legal questions, the answer is clear: It depends. Several factors can determine allocation of legal liability – language in the applicable statute, private contracts between the parties, or common legal theories. A better answer to this question than “it depends” is that any party might be liable under certain circumstances. This means that all of the parties can benefit from understanding the law and how the law and relevant factors apply in different situations.
Laws Particular to Facilities with State and Federal Permits
The size of a livestock facility dictates applicable laws for a manure liability situation. Larger confined animal operations that are subject to the EPA’s National Pollutant Discharge Elimination System must comply with separate state and federal laws that require approved permits for a facility. The terms of a facility’s permit include limitations on discharges of waste into waterways. The operator of a facility that emits waste pollutants in excess of that specified by the permit, or that otherwise violates the terms of the permit, can be liable for civil and criminal penalties, restoration or repair costs and reimbursement of the government’s response costs.
Legal Liability Issues for Handling Manure
A key factor in liability for permitted facilities, then, is familiarity with the permit, its restrictions and its management plans. Proper implementation of management plans and careful monitoring of permit limitations can help avoid a permit violation and ensuing liability.
Land Application
of Animal Waste
Where the applicator, landowner and livestock operator are different parties, these situations often present the question of “which party is liable?” As stated previously, several factors dictate the outcome to this question: the terms and restrictions in a permit, the agreement between the parties, who has authority and control over the waste application, and the chain of events that resulted in the discharge or spill. Clearly written agreements between the various parties could address most of these factors and help alleviate the uncertainty of liability allocation.
Manure Storage
We typically think of manure liability in terms of environmental and nuisance risk, but manure storage also poses the risk of harm to property visitors. A landowner or facility owner has a duty to keep property visitors safe from dangerous conditions on the property, with the exception of adult trespassers. Failure to do so could create liability by way of a negligence claim. A manure storage structure could be considered a dangerous condition, particularly to children, so the owner or operator should take reasonable efforts to minimize the dangers and keep property visitors away from the storage structure. Simple measures, such as fences, signs, lighting, covers and locks, can go a long way in reducing liability risk.
Peggy Kirk Hall is with the The Ohio State University, Agricultural & Resource Law Program. This article is an excerpt from the "Ohio Ag Manager Newsletter, February 2007."
