Penn State Agricultural Law Blog: Agricultural Law Weekly Review

Written by: Ross H. Pifer (Director), M. Sean High (Staff Attorney), Jacqueline Schweichler (Staff Attorney), and Deanna Smith (Research Assistant)

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Air Quality: EPA Proposes Reporting Exemption for Air Emissions from Animal Waste

On October 30, 2018, the U.S. Environmental Protection Agency (EPA) released a proposed rule to amend the notification requirements for agricultural facilities under the Emergency Planning and Community Right-to-Know Act (EPCRA). EPCRA imposes reporting obligations upon the owners and operators of certain facilities relating to the storage, use, and release of hazardous substances (42 U.S.C. §11004). The proposed rule amends the emergency release notification regulation to exempt reporting for air emissions from animal waste at farms. This change has been implemented by adding definitions for "farm" and "animal waste" to the regulation. The creation of the agricultural exemption in the proposed rule is intended to maintain consistency with the regulations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). On March 23, 2018, legislation was enacted to provide an agricultural exemption for reporting air emissions from animal waste under CERCLA (Fair Agricultural Reporting Method Act, Pub. L. No. 115-141). According to EPA, CERCLA and EPCRA are interrelated environmental laws with some portions of EPCRA depending upon corresponding CERCLA requirements. In establishing identical agricultural exemptions to the reporting requirements under each statute, EPA believes that it has acted "in furtherance of the underlying purpose of this statutory framework." Public comments on the proposed rule are due on or before 30 days after publication of the proposed rule in the Federal Register.

Pesticides: EPA Extends Dicamba Registration for “Over-the-Top” Use

On October 31, 2018, the U.S. Environmental Protection Agency (EPA) announced that the registration of dicamba for “over-the-top” use on genetically engineered cotton and soybeans has been extended for two years. The term “over-the-top” use refers to when application of a pesticide is made to a growing plant. As part of the two-year extension, EPA has also imposed new labeling requirements and restrictions on applicable dicamba products. According to EPA Acting Administrator Andrew Wheeler, the agency recognizes “that dicamba is a valuable pest control tool for America’s farmers.” Mr. Wheeler further stated that “[b]y extending the registration for another two years with important new label updates that place additional restrictions on the product, we are providing certainty to all stakeholders for the upcoming growing season.” Following the EPA action, U.S. farmers may continue to use the dicamba products until December 20, 2020.

FSMA: FDA Issues Guidance Regarding Mandatory Food Recalls

On November 6, 2018, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register that the agency has issued a final guidance document entitled: Guidance for Industry and FDA Staff: Questions and Answers Regarding Mandatory Food Recalls (83 FR 55551). According to FDA, the guidance is intended to provide industry with information regarding the implementation of the FDA Food Safety Modernization Act’s (FSMA) mandatory food recall provisions. FDA stated that the guidance provides answers to potential questions which may arise from the implementation of the mandatory food recall provisions and expresses FDA’s current thoughts on the topic.

Right to Farm Laws: Appeals Court Rules against Gag Order for North Carolina Swine Farm Nuisance Lawsuit

On October 31, 2018, Feedstuffs reported that the 4^th Circuit Court of Appeals struck down a gag order imposed by a trial judge in a nuisance lawsuit against a North Carolina swine operation. Under a gag order, a judge forbids the parties, attorneys, and witnesses from publicly discussing the facts of a case. According to the article, the defendant in the nuisance suit—Murphy-Brown LLC—asserted that the gag order was an unconstitutional violation of the First Amendment to the U.S. Constitution. The appeals court unanimously agreed and held that the gag order had prevented the parties from exercising their First Amendment right. The appeals court further asserted that the “gag order has already inflicted serious harm on parties, advocates and potential witnesses alike…and has muted political engagement on a contested issue of great public and private consequence.”

International Trade: Canada Announces Working Groups for Poultry, Egg, and Dairy Sectors

On October 29, 2018, the Government of Canada published a news release announcing the formation of new working groups in the poultry and egg sectors, as well as among dairy farmers and processors. These working groups are meant to help develop adjustment strategies for Canadian farmers and processors in response to the new United States-Mexico-Canada Agreement (USMCA). Canada’s Minister of Agriculture and Agri-Food, Lawrence MacAulay, said that these groups will “ensure the voices of the hardworking men and women who are building and growing our farm businesses are heard and reflected.”

From National Ag Law Experts:

“Ohio Agricultural Law Blog--The Ag Law Harvest,” Evin Bachelor and Ellen Essman, Ohio State University Extension (November 2, 2018)

“State’s Public Utility Law Preempted Local Zoning and Planning Requirements for Siting a Solar Energy Farm”, Paul Goeringer, Maryland Risk Management Education Blog (November 7, 2018)

“American Agricultural Law Association Conference Review”, Tiffany Dowell Lashmet, Texas Agricultural Law Blog, Texas A&M AgriLife Extension (November 5, 2018)

Pennsylvania Actions and Notices:

Game Commission: Notices

Chronic wasting disease—designation of disease management areas and endemic states and Canadian provinces order # 6

Pennsylvania Department of Agriculture

“November 16 is Deadline to Apply for Funds to Support Organic Agriculture”

Penn State Research:

“Making wind farms more efficient” – Penn State Today

“Penn State researchers find farmers markets’ food safety inadequate; E. coli and Listeria abound” – Food Safety News

AgLaw HotLinks:

“Groups ask EPA to crack down on land use for biofuels” – E&E News PM

“NMPF criticizes USDA dairy aid package for falling ‘far short’” – Dairy Reporter

“Stalled farm bill grabs attention during midterms, expected on front burner when Congress returns” – CNBC