Thursday, May 24, 2018

Agricultural Law Weekly Review—May 24, 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: Court Issues Mandate for CERCLA/EPCRA Reporting [Updated May 30, 2018]
On May 2, 2018, the U.S. Court of Appeals for the DC Circuit issued a mandate vacating a 2008 final rule that provided agricultural exemptions for reporting air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA).  Under the 2008 final rule, all agricultural operations were provided a complete exemption from CERCLA reporting requirements.  While the 2008 final rule required certain concentrated animal feeding operations to report air emissions under EPCRA, the regulation exempted all other agricultural operations from EPCRA reporting requirements.  Subsequently, on April 11, 2017, the U.S. Court of Appeals for the DC Circuit vacated the 2008 final rule.  Following the court’s ruling, on March 23, 2018, President Donald Trump signed into law the Consolidated Appropriations Act, 2018 (Omnibus Bill) which contained language exempting agricultural operations from CERCLA air emission reporting requirements (Public Law No: 115-141).  Additionally, because the Omnibus Bill excluded the reporting of air emissions from animal waste under CERCLA, “these releases fall out of the reporting requirements of EPCRA section 304” (see EPA document entitled: How does the Fair Agricultural Reporting Method (FARM) Act impact reporting of air emissions from animal waste under CERCLA Section 103 and EPCRA Section 304?).  As a result, despite the May 2, 2018, court mandate, agricultural operations are not required to submit reports regarding air emissions from animal waste at farms under either CERCLA or EPCRA.

Dairy Policy: Pennsylvania Introduces “Choose PA Dairy” Campaign to Promote Local Milk
On May 18, 2018, the Pennsylvania Department of Agriculture (PDA) announced the introduction of a new dairy promotion campaign entitled: Choose PA Dairy: Goodness that Matters.  PDA asserted that the purpose of the campaign is to educate consumers on how to recognize and purchase Pennsylvania-produced milk by looking at a product’s packaging.  Consumers can identify Pennsylvania-produced milk by locating either the PA Preferred® logo or plant code 42.  Plant codes, which indicate the state where the milk was processed, are located at the top of each container.   Accordingly, plant code 42 is the designation assigned to milk processed in Pennsylvania.  PDA stated that the new campaign is a partnership between PDA, the Center for Dairy Excellence, Pennsylvania Dairymen’s Association, PA Preferred, American Dairy Association Northeast, the Professional Dairy Managers of Pennsylvania, and the Pennsylvania Farm Bureau.

Dairy Policy: California Dept. of Food & Ag Issues Response Regarding Proposed FMMO
On May 12, 2018, California Department of Food & Agriculture (CDFA) issued a letter responding to the U.S. Department of Agriculture’s Recommended Decision proposing the establishment of a Federal Order (FMMO) to regulate the handling of milk in California.  According to CDFA, while “ready and willing to establish a stand-alone, producer funded quota program,” the department sees potential conflict with current California statutes.  As a result, CDFA stated that prior to holding the California FMMO producer referendum, the department intends to sponsor new legislation and develop details for the stand-alone quota program

Agribusiness: Pennsylvania Exempts Qualified High Tunnels from Storm Water Management Regulations
On April 18, 2018, Pennsylvania Governor Tom Wolf approved Act 15 which exempts qualifying “high tunnels” from requirements under the Pennsylvania Storm Water Management Act.  Under Act 15, a high tunnel is defined as a structure used for the production, processing, keeping, storing, sale or shelter of an agricultural commodity that:

  • Has a metal, wood or plastic frame;
  • When covered, has a plastic, woven textile or other flexible covering; AND
  • Has a floor made of soil, crushed stone, matting, pavers or a floating concrete slab

To qualify for the exemption, the high tunnel (or its flooring) may not result in an impervious area that exceeds 25% of all structures located on the owner's total contiguous land area.  Additionally, the exemption only applies when a high tunnel meets one of the following requirements:

  • The high tunnel is located at least 100 feet from any perennial stream or watercourse, public road or neighboring property line;
  • The high tunnel is located at least 35 feet from any perennial stream or watercourse, public road or neighboring property line and is located on land with a slope not greater than 7%; OR
  • The high tunnel has a buffer or diversion system that does not directly drain into a stream or other watercourse

Pesticides: EU Court Upholds Ban on Pesticides Thought Potentially Harmful to Bees
On May 17, 2018, Euractiv reported that the European Court of Justice has upheld a European Union (EU) ban on three pesticides thought to be harmful to bees.  According to the report, the court rejected attempts by Bayer and Syngenta to lift current EU restrictions against the nicotine based pesticides clothianidin, thiamethoxam and imidacloprid.  In upholding the current ban, the court cited potential risks the pesticides posed to bee populations.  According to Euractiv, “past studies have found neonicotinoids can cause bees to become disorientated such that they cannot find their way back to the hive, and lower their resistance to disease.”

From National Ag Law Experts:

Pennsylvania Case Law:
  • Encore Fund Trust v. Cribbs, No. 1420 WDA 2017, Pa. Superior Court (May 18, 2018) (finding existence of implied easement and right to use neighbor’s driveway)

Pennsylvania Legislation:
Agriculture and Rural Affairs (S)
  • SB 819  Legislation to amend the Agricultural Area Security Law to provide uniformity and protection for agritourism activities (Reported out of committee for Senate consideration, May 22, 2018)
  • SB 1171 Legislation to replace Nutrient Management Advisory Board with Farm Animal Advisory Board (Reported out of committee for Senate consideration, May 22, 2018)

Agriculture and Rural Affairs (H)
  • HB 2422 Legislation to enable PA Game Commission to work with Department of Agriculture to combat spread of Chronic Wasting Disease (Referred to committee May 17, 2018)

Pennsylvania Actions and Notices:
Milk Marketing Board

Penn State Research

AgLaw HotLinks:

Stay Informed:

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