Thursday, May 31, 2018

Agricultural Law Weekly Review—May 31, 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:

Right to Farm Laws: Neighbors Appeal to Pennsylvania Supreme Court Regarding Swine Operation
On April 29, 2018, neighbors filed petitions with the Pennsylvania Supreme Court seeking review of a lower court decision in favor of a Pennsylvania swine operation (296 MAL 2018) (297 MAL 2018).  The petitions follow a March 29, 2018, Superior Court of Pennsylvania determination that a nuisance suit brought against a swine operation’s application of liquid swine manure was barred under Pennsylvania's right to farm law (Burlingame, J. v. Dagostin, P., No. 799 MDA 2017).  For more information concerning the Superior Court’s ruling, see the Penn State Agricultural Law Weekly Review—April 5, 2018.

Agricultural Labor: U.S. Secretaries Release Joint Cabinet Statement Regarding H-2A Program
On May 24, 2018, U.S. Secretary of Labor Alexander Acosta, U.S. Secretary of Homeland Security Kirstjen Nielsen, U.S. Secretary of Agriculture Sonny Perdue, and U.S. Secretary of State Mike Pompeo issued a joint cabinet statement concerning the H-2A temporary agricultural visa program.  According to the statement, the agencies are working together to modernize the H-2A temporary agricultural visa program to better meet the labor needs of the American farmer.  The secretaries asserted that their goal is to reduce the complexity of the regulations currently governing the program.  Additionally, the secretaries stated that they intend to provide farmers with incentives to use the voluntary E-Verify online system to confirm an employee’s eligibility to work in the U.S.

FSMA: FDA Issues FSMA Guidance for Food Facilities
On May 29, 2018, the U.S. Food and Drug Administration (FDA) published notice in the Federal Register of industry guidance entitled: Registration of Food Facilities: What You Need To Know About the FDA Regulation—Small Entity Compliance Guide (83 FR 24479).  Previously, on July 14, 2016, FDA published a final rule, entitled: Amendments to Registration of Food Facilities (81 FR 45912).  Under the July 14, 2016, final rule, food facility registration regulations were amended to reflect FDA Food Safety Modernization Act amendments to section 415 of the Federal Food, Drug, and Cosmetic Act.  FDA stated that the purpose of the industry guidance is to help small entities comply with the food facility registration changes that resulted from the July 14, 2016 final rule.

Animal Welfare: APHIS Will Not Recognize Third-Party Inspections and Certifications to Determine Frequency of Animal Welfare Inspections
On May 25, 2018, The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced that the agency will not establish criteria that recognize third-party inspection and certification programs used for determining the frequency of APHIS inspections under the Animal Welfare Act (AWA).  APHIS stated that the agency arrived at the decision following a series of public listening sessions and public comments submitted through the Federal Register.  According to APHIS, the “vast majority” of stakeholders providing response were not in favor of establishing a program that recognized third party inspections and certifications when determining the frequency of AWA inspections.  As a result, APHIS stated that when determining frequency of AWA inspections, the agency will continue to utilize its current risk-based inspection system.     

Air Quality: Court Issues Mandate for CERCLA/EPCRA Reporting [Update to article appearing in May 24, 2018, Agricultural Law Weekly Review]
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, EPA stated that “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 “do not need to report air emissions from animal waste at farms under either CERCLA or EPCRA.”

From National Ag Law Experts:
  • Exempt Wells & Agriculture, Jesse J. Richardson, Jr. and Iris Aloi, West Virginia University College of Law, an agricultural law research publication by the National Agricultural and Food Law Consortium, May 18, 2017
  • Water Rights Tables, Jesse J. Richardson, Jr. and Iris Aloi, West Virginia University College of Law, an agricultural law research publication by the National Agricultural and Food Law Consortium, May 18, 2017

Pennsylvania Actions and Notices:
Department of Agriculture

Milk Marketing Board

State Conservation Commission

Penn State Research and Education

AgLaw HotLinks:

Stay Informed:

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