Thursday, March 29, 2018

Agricultural Law Weekly Review—March 29, 2018

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:

Air Quality: Omnibus Bill Exempts Farms from CERCLA Air Emission Reporting
On March 23, 2018, President Donald Trump signed into law the Consolidated Appropriations Act, 2018 (Omnibus Bill) which contained language exempting farms from air emission reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Public Law No: 115-141).  Accordingly, under Title XI of the legislation, entitled the Fair Agricultural Reporting Method Act or the FARM Act, “air emissions from animal waste at a farm” are now exempt from CERCLA reporting requirements (Sec. 1102).  Previously, on December 18, 2008, the U.S. Environmental Protection Agency (EPA) published a final rule that provided agricultural operations a complete exemption from CERCLA reporting requirements.  Subsequently, on April 11, 2017, the U.S. Court of Appeals for the DC Circuit vacated the 2008 final rule.  Following the decision, the court allowed that farms affected by the April 11, 2017, decision would not be required to submit their initial reports until the court orders its mandate enforcing the decision.  EPA anticipates that the mandate will be issued on May 1, 2018.  Significantly, as a result of the enacted Omnibus Bill, farms will remain exempt from CERCLA reporting requirements even after the court issues its mandate vacating the 2008 final rule.

Dairy Policy: Presiding Official Ratifies Proposed California Federal Milk Marketing Order Evidentiary Record
On March 19, 2018, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register that the evidentiary record of USDA’s California Federal Milk Marketing Order (FMMO) rulemaking proceeding has been ratified by a Judicial Officer (JO) (83 FR 11903).  Previously, on December 1, 2017, AMS amended the marketing order formulation procedures to include a presiding official appointed by the Secretary under the definition of a “judge” (82 FR 58097).  Subsequently, on February 14, 2018, the Secretary of Agriculture appointed a JO to conduct an independent de novo review of the California FMMO hearing record formerly presided over by an Administrative Law Judge (ALJ).  On March 9, 2018, the JO ratified all of the presiding ALJ’s actions.  As a result, USDA announced its intention to move forward with the California FMMO rulemaking proceeding.

Animal Welfare: Kansas Law Permits Larger Poultry Facilities
On March 20, 2018, the Lawrence Journal-World reported that Kansas Governor Jeff Colyer has signed legislation that expands the number of birds that may be housed in a poultry facility.  According to the report, the new law allows poultry producers that utilize “a dry manure processing system” the ability to house up to one-third of a million birds at a single location before a permit is required by state health and environment officials.  The report stated that when applicable, the state’s permitting requirements subject producers to minimum set-back distances between buildings and/or property lines.

Antitrust: EU Approves Bayer Monsanto Merger
On March 21, 2018, Reuters reported that the European Union has approved Bayer’s $62.5 billion purchase of Monsanto.  According to Reuters, the proposed merger would create a company that potentially controls over one quarter of the world’s seed and pesticide markets.  Reuters stated that EU officials approved the merger only after the companies secured continued market competition by offering to sell-off select assets.  The proposed merger still awaits approval by the U.S. Justice Department.

Animal Welfare: McDonald’s announces Chicken Welfare and Sustainability Policy
On March 26, 2018, McDonald’s announced plans regarding the company’s chicken sustainability strategy and global chicken welfare commitments. Accordingly, McDonald’s asserted plans to form a Chicken Sustainability Advisory Council made-up “of key suppliers and genetics experts.”  McDonald’s stated that the Council will advise the company on how to implement a program that takes a holistic approach to chicken sustainability and welfare.  Council member, and noted animal welfare expert Dr. Temple Grandin asserted that she thought McDonald’s efforts represented “one of the most comprehensive corporate programs that I’ve seen for chickens.”

National Ag Law Experts:

Pennsylvania Legislation:
Agriculture and Rural Affairs (H)
  • HB 2164 Legislation providing for the adoption of retired research animals (referred to Committee March 26, 2018)
  • SB 792 Legislation providing labeling requirements for lawn fertilizer (referred to Committee March 26, 2018)

Environmental Resources and Energy (S)
  • HB 544 Legislation to amend Pennsylvania’s Recreational Use of Land and Water Act (legislation reported as amended, presented to Senate for first consideration March 27, 2018) 

Pennsylvania Actions and Notices:
Department of Agriculture

Department of Environmental Protection

Department of Health

AgLaw HotLinks:

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