Thursday, April 20, 2017

Agricultural Law Weekly Review - April 20, 2017 (Revised)

Written by M. Sean High – Staff Attorney

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

Right to Farm: Luzerne County Common Pleas Court Dismisses Nuisance Suit against Swine Operation
On April 13, 2017, the Luzerne County Court of Common Pleas granted summary judgment dismissing a nuisance suit brought against a Salem Township swine operation (Burlingame v. Dagostin, Luzerne County, No. 2015-02092).  In a consolidation of three separate actions, neighbors surrounding a pig farm claimed that the operation of the farm, “and most particularly the spreading of its resultant liquid swine manure on the fields surrounding it,” was a private nuisance. The court disagreed and held that the neighbors were barred from pursuing a nuisance action under the Pennsylvania Right to Farm Act (RTFA) (3 P.S. §§951-957).  The court held that the swine operation had an approved Pennsylvania Nutrient Management Plan prior to the commencement of spreading liquid swine manure which made computation of RTFA’s one year time limit irrelevant.  The court also held that the operation of a concentrated animal feeding operation and the spreading of liquid swine manure are “normal agricultural operations.” Finally, the court held that the swine operation had been lawfully operating since it began and it was in full compliance with its nutrient management plan.  For more information regarding this case, please see the previous Center publication found here.

Air Quality: Court Strikes Down Agricultural Exemptions to EPCRA and CERCLA Reporting Requirements
On April 11, 2017, the U.S. Court of Appeals, District of Columbia Circuit, vacated a U.S. Environmental Protection Agency rule that provided a complete agricultural exemption for reporting air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as well as a partial agricultural exemption for reporting air emissions under the Emergency Planning and Community Right-to-Know Act (EPCRA) (Waterkeeper Alliance v. EPA, 2017 WL 1323525).  CERCLA and EPCRA "require parties to notify authorities when large quantities of hazardous materials (such as ammonia or hydrogen sulfide) are released into the environment."  Under the final EPA rule, promulgated on December 18, 2008, concentrated animal feeding operations were required to report air emissions under EPCRA while all other agricultural operations were exempted from EPCRA reporting requirements.  The final rule exempted all agricultural operations from CERCLA reporting requirements.  Barring a successful appeal to the U.S. Supreme Court, the court's ruling will require all agricultural operations to comply with CERCLA and EPCRA reporting requirements for air releases from animal waste above the defined statutory threshold.
Avian Influenza: States Lift Restrictions
This past week, two southern states recently affected by avian influenza announced a loosening of poultry restrictions.  On April 12, 2017, the Tennessee Department of Agriculture (TDA) announced a release “of the control zone surrounding two Lincoln County poultry farms affected by highly pathogenic avian influenza (HPAI).” Additionally, TDA stated that “[t]he statewide poultry health advisory is also lifted, and poultry owners can now resume regular activity.” On April 13, 2017, the Kentucky Department of Agriculture (KDA) announced that the state veterinarian “has released surveillance zones surrounding two Christian County farms following negative test results for low pathogenic avian influenza from both commercial and backyard poultry operations.” KDA did state, however, that “[t]he quarantines on the two affected farms remain in place pending completion of cleaning and disinfection procedures.” 

Farmland Preservation: Pennsylvania Preserves Thirty-One New Farms
On April 17, 2017, the Pennsylvania Department of Agriculture (PDA) announced that the Commonwealth has added “2,432 more acres on 31 farms in 19 counties” to the list of preserved farmland.  According to PDA, the preserved farmland is in the following counties: “Allegheny, Berks, Bucks, Chester, Clinton, Cumberland, Dauphin, Juniata, Lackawanna, Lancaster, Lebanon, Lehigh, Lycoming, Mifflin, Monroe, Montgomery, Tioga, Wayne, and Westmoreland.” PDA stated that “[s]ince the program began in 1988, federal, state, county and local governments have invested more than $1.3 billion to preserve 533,457 acres on 5,102 farms in 58 counties for future agricultural production.” 

Federal Administrative Actions and Notices:
Agricultural Marketing Service
Department of Justice
Environmental Protection Agency
Pennsylvania Administrative Actions and Notices:
Department of Environmental Protection
Senate Environmental Resources and Energy
SB 605 Pipeline Impact Fee
House Agriculture and Rural Affairs
HB 1220 Food Handling Legislation 

AgLaw HotLinks:
"USDA seeks to advance modernized pork slaughter" -Meatingplace 

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