Category Archives: Animals

Law bulletin helps livestock farmers with new air emissions reporting

Beginning today, farmers must now report air emissions of certain hazardous substances that exceed a reportable quantity under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act.  This new requirement affects livestock farmers with larger numbers of animals, as they may exceed the reportable quantity for ammonia emissions.  We’ve authored a new Law Bulletin on Continuous Release Reporting of Air Emissions for Livestock Farms to help farms determine whether they must report air emissions and if so, how to complete the reporting process.  The new bulletin is available here.

Read more about the new CERCLA air emissions reporting mandate in our earlier post.

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Farms must now begin reporting air releases of hazardous substances from animal wastes

Beginning November 15, 2017, many livestock, poultry and equine farms must comply with reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 103. The law requires entities to report releases of hazardous substances above a certain threshold that occur within a 24-hour period. Farms have historically been exempt from most reporting under CERCLA, but in the spring of 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the rule that allowed reporting exemptions for farms. As long as there is no further action by the Court to push back the effective date, farmers and operators of operations that house beef, dairy, horses, swine and poultry must begin complying with the reporting requirements on November 15, 2017.

Farmers and operators, especially of sizeable animal operations that are likely to have larger air emissions, need to understand the reporting responsibilities. The Environmental Protection Agency (EPA) has published interim guidance to assist farms with the new compliance obligations. The following summarizes the agency’s guidance.

What substances to report

The EPA specifically names ammonia and hydrogen sulfide as two hazardous substances commonly associated with animal wastes that will require emissions reporting. Each substance has a reportable quantity of 100 pounds. If a farm releases 100 pounds or more of either substance to the air within a 24-hour period, the owner or operator must notify the National Response Center. A complete list of hazardous substances and their corresponding reportable quantities is here.

Note that farmers do not have to report emissions from the application of manure and fertilizers to crops or the handling, storage and application of pesticides registered under federal law. However, a farmer must report any spills or accidents involving these substances when they exceed the reportable quantity.

How to report

Under CERCLA, farm owners and operators have two compliance options—to report each release or to follow the continuous release reporting process:

  • For an individual release that meets or exceeds the reportable quantity for the hazardous substance, an owner or operator must immediately notify the National Response Center (NRC) by phone at 1-800-424-8802.
  • Continuous release reporting allows the owner or operator to file an “initial continuous release notification” to the NRC and the EPA Regional Office for releases that will be continuous and stable in quantity and rate. Essentially, this puts the authorities “continuously” on notice that there will be emissions from the operation within a certain estimated range. If the farm has a statistically significant increase such as a change in the number of animals on the farm or a significant change in the release information, the farm must notify the NRC immediately. Otherwise, the farm must file a one year anniversary report with the EPA Regional Office to verify and update the emissions information and must annually review emissions from the farm. Note that a farm must submit its initial continuous release notification by November 15, 2017.

No reporting required under EPCRA

The litigation that led to CERCLA reporting also challenged the farm exemption from reporting for the Emergency Planning and Community Right to Know Act (EPCRA). EPRCRA section 304 requires facilities at which a hazardous chemical is produced, used or stored to report releases of reportable quantities from the chemicals. However, EPA explains in a statement issued on October 25, 2017 that the statute excludes substances used in “routine agricultural operations” from the definition of hazardous chemicals. EPCRA doesn’t define “routine agricultural operations,” so EPA states that it interprets the term to include regular and routine operations at farms, animal feeding operations, nurseries, other horticultural operations and aquaculture and a few examples of substances used in routine operations include animal waste stored on a farm and used as fertilizer, paint used for maintaining farm equipment, fuel used to operate machine or heat buildings and chemicals used for growing and breeding fish and plans for aquaculture. As a result of this EPA interpretation, most farms and operations do not have to report emissions under EPCRA. More information on EPA’s interpretation of EPCRA reporting for farms is here.

What should owners and operators of farms with animal wastes do now?

  1. Review the EPA’s interim guidance on CERCLA and EPCRA Reporting Requirements, available here.
  2. Determine if the operation may have reportable quantities of air emissions from hazardous substances such as ammonia or hydrogen sulfide. The EPA offers resources to assist farmers in estimating emission quantities, which depend upon the type and number of animals and type of housing and manure storage facilities. These resources are available here.
  3. A farm that will have reportable emissions that are continuous and stable should file an initial continuous release notification by November 15, 2017. A guide from the EPA for continuous release reporting is here. Make sure to understand future responsibilities under continuous release reporting.
  4. If not operating under continuous release reporting, immediately notify the National Response Center at National Response Center (NRC) at 1-800-424-8802 for any release of a hazardous substance that meets or exceeds the reportable quantity for that substance in a 24-hour period, other than releases from the normal application or handling of fertilizers or pesticides.
  5. Learn about conservation measures that can reduce air pollution emissions from agricultural operations in this guide from the EPA.

Note that the EPA is seeking comments and suggestions on the resources the agency is providing or should provide to assist farm owners and operators with meeting the new reporting obligations. Those who wish to comment should do so by November 24, 2017 by sending an e-mail to CERCLA103.guidance@epa.gov.

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USDA Sued over Country of Origin Labeling Regulations

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

On June 19, 2017, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) and the Cattle Producers of Washington (CPoW) sued the United States Department of Agriculture (USDA) and the Secretary of Agriculture, Sonny Perdue, over the legality of the current country of origin labeling  (COOL) regulations.  R-CALF USA and CPoW claim that USDA’s current COOL regulations do not require foreign beef and pork products to be labeled as such, and that in fact, the regulations allow the foreign meat to “be passed off as domestic products.”  This, they argue, hurts U.S. cattle and hog producers, as well as U.S. consumers.  The suit was filed in the U.S. District Court for the Eastern District of Washington, in Spokane.  In short, R-CALF USA and CPoW are asking the court to rule that the current COOL regulations are at odds with two federal laws: the Meat Inspection Act and the Tariff Act.

 Federal laws relating to Country of Origin Labeling

According to R-CALF USA and CPoW, two laws—the Meat Inspection Act and the Tariff Act—must be taken into account when thinking about COOL.  R-CALF USA and CPoW argue that read together, these two laws require imported meat from cattle and hogs to possess country of origin labels.

The Meat Inspection Act, at 21 U.S.C. §620(a), says that imported meat must “be marked and labeled as required by such regulations for imported articles.” “[R]egulations for imported articles” are governed by the Tariff Act.  The Tariff Act, in 19 U.S.C. §1304(a), states that “every article of foreign origin (or its container…) imported into the United States shall be marked in a conspicuous place…in such a manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article.”

Regulatory history

In the lawsuit, the parties argue that historically, USDA pork and beef regulations did not follow their understanding of the Meat Inspection and Tariff Acts, discussed above.  In other words, the regulations did not require COOL.  The 2002 Farm Bill changed that.  The parties say that the 2002 Farm bill had the “primary effect of requiring” COOL on meat products from animals imported into the U.S. and subsequently slaughtered after importation.

Following the Farm Bill’s lead, USDA changed its regulations concerning meat imported into the U.S. from other countries, including meat from hogs and cattle.  The regulation, found in 7 C.F.R. § 65.300, was finalized in 2009.  It stated that meat “derived from an animal that was slaughtered in another country shall retain [its] origin, as declared to the U.S. Customs and Border Protection at the time the product entered the United States, through retail sale,” or sale to the end consumer.  Therefore, COOL was required on meat imported into the U.S. The regulation also allowed for the “origin declaration” on labels to “include more specific location information related to production steps.”   This meant that the labels for beef and pork could include where the animals were born, raised, and slaughtered.

World Trade Organization decision and change to regulations

After the new COOL regulations went into place, they were challenged by Canada and Mexico.  The World Trade Organization (WTO) ultimately sided with Canada and Mexico.  WTO’s reasoning for this decision is outlined in a Congressional Research Service Report on the dispute, and was based on their finding that “COOL treats imported livestock less favorably than U.S. livestock.”

Following the WTO decision, Congress determined that beef and pork—both alive and slaughtered—no longer required COOL.  Similarly, USDA removed meat from cattle and hogs from its COOL regulations.  These actions, the parties argue, went too far.  R-CALF USA and CPoW argue that the WTO decision only involved cattle and hogs that were imported live, as opposed to imported meat.

It is important to note that a number of other foods are still required to have COOL, including lamb, goat, chicken, farm-raised fish and shellfish, fresh and frozen fruits and vegetables, peanuts, pecans, macadamia nuts, and ginseng.  More information on COOL can be found here.

R-CALF USA and CPoW’s argument

Ultimately, the parties argue that USDA went too far when they removed all meat from cattle and hogs from their COOL labeling requirements.  They argue that the WTO decision focused on live hogs and cattle, as opposed to meat from those animals, and that WTO never “call[ed] into question the marks and labels required by the Tariff Act” for meat.  Thus, they argue that USDA regulations should continue to follow the Meat Inspection and Tariff Acts, as they did following the 2002 Farm Bill.

R-CALF and CPoW claim that as a result of USDA’s far-reaching retraction of COOL regulations, “beef and pork from animals in other countries” is permitted to have the “same labels as domestic meat.”  They claim that now, “imported beef and pork can even be labeled a ‘Product of the U.S.A.’” As a consequence of this type of labeling, the parties claim that both U.S. consumers and producers are harmed.

Conclusion

R-CALF and CPoW’s lawsuit heavily relies on the authority of the Tariff Act and the Meat Inspection Act.  Their argument, in its most basic form, is that the two laws require COOL for beef and pork, and that the WTO decision did not ever call those two laws into question.  Therefore, they feel that the change in regulations went further than was necessary to comply with the WTO decision.

The defendants named, USDA and Secretary Sonny Perdue, have not yet filed their response to the lawsuit.

R-CALF USA and CPoW’s lawsuit can be read here.

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Regulating Livestock Welfare Remains an Issue Around the Country

Written by:  Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

Livestock producers in Ohio have been subject to standards for the care of livestock since 2011 but animal welfare is still a topic of debate around the country. Most recently, attention turned to the care of livestock raised under the National Organic Program and animals raised in confinement in Massachusetts.   In this post, we examine the proposed federal organic standards and a livestock care ballot initiative passed in Massachusetts.  The discussion provides an opportunity to take a look at the status of Ohio’s livestock care standards.

Federal Organic Standards

On January 19, 2017, the USDA’s Agricultural Marketing Service (AMS) promulgated a final rule for the National Organic Program (NOP).  The rule concerns practices for organic livestock and poultry.  Namely, the rule “clarifies how producers and handlers participating in the NOP must treat livestock and poultry to ensure their wellbeing.”  These treatment standards are applicable at numerous times throughout the lives of livestock, including when the animals are transported or slaughtered.  Additionally, the rule spells out the amount and type of indoor and outdoor space organic poultry must have under NOP.  The rule also describes the timing and methods for physically altering livestock and poultry under NOP.  The rule allows “[p]hysical alterations…only…for an animal’s welfare, identification, or safety.”  For example, the rule limits the use of teeth clipping and tail docking in pigs, and prohibits the de-beaking of chickens or face branding of cattle.  Many other banned and limited alterations are spelled out in the rule, as well as provisions that require active monitoring of animal health and treatment of injuries, sicknesses, and diseases.  The rule was originally supposed to become effective on March 20, 2017.  The Trump Administration, however, has since instituted a regulatory freeze in order to review recently made regulations.   In response to the regulatory freeze, AMS pushed back the effective date to May 19, 2017.  Barring any decisions by the new administration to the contrary, the rule should become effective on that date.  More information concerning this final rule is available here.

Massachusetts voters approve livestock confinement ballot initiative

Some states have taken it upon themselves to address various aspects of animal welfare.  This past Election Day, Massachusetts passed Question 3, a ballot initiative concerning confinement of livestock.  Question 3, also called the Prevention of Farm Animal Cruelty Act, applies to farm owners and operators who raise breeding pigs, veal calves, and egg-laying hens within the state, and also to business owners and operators who sell products from such livestock within the state.  When the Act becomes effective on January 1, 2022, this will mean that any farmers or businesses selling their pork, veal, or eggs in Massachusetts, even if they are not physically located within the state, would have to comply with the state’s confinement rules.  The law prohibits the aforementioned livestock being “confined in a cruel manner,” meaning that the animals cannot be “confined so as to prevent [them] from lying down, standing up, fully extending [their] limbs, or turning around freely.”  There are certain exceptions to this rule, including during transport, at fairs, during a veterinary examination, etc.  When the Act goes into effect, violators will face a $1,000 civil fine per violation, and/or an injunction

Ohio Livestock Care Standards

As many will remember, Ohio has its own laws and regulations concerning livestock welfare.  Voters passed an amendment to the Ohio Constitution in 2009.  The amendment created the Ohio Livestock Care Standards Board, which was tasked with creating the actual “care standards” for livestock animals in the state.  The first of these “livestock care standards,” or rules, became effective on September 29, 2011.  Standards exist for different types of livestock and cover everything from acceptable euthanasia practices for each species, to the provision of food and water, to acceptable methods of transportation.  The board continues to meet regularly to review the care standards.

The regulations on livestock care include an investigation process initiated by complaints on potential violations of the standards.  Since the standards became effective, the Ohio Department of Agriculture has received a number of complaints and works with operators to bring them into compliance if the agency finds a violation. According to Farm and Dairy, there were 51 such investigations in 2012, 29 in 2013, and 23 in 2014.  In 2015, there were 33 investigations—23 of which resulted in no violations of the standards.   Producers can learn more about the livestock care standards at http://www.agri.ohio.gov/LivestockCareStandards.

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Legislation Proposes Tax Credits for Manure Infrastructure Investments

A legislative proposal to address manure infrastructure costs introduced by Rep. Brian Hill (R-Zanesville) is moving once again, receiving its third hearing before the House Ways and Means Committee on Tuesday, April 26.  To continue reading this post, go to our new blog site, here.

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Manure Regulation in Ohio

Although long considered a natural fertilizer that can benefit our soils, manure has a history of increased regulation in recent years based on potential impacts to water quality.   The following explains how state and federal law regulates the production, storage and application of animal manure in Ohio.   To read this post, go to our new blog site at aglaw.osu.edu/blog.

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Leasing Your Land for Hunting: Legal Considerations

With fall quickly approaching, now is a good time to consider whether you should lease your land for hunting. To read this blog, go to aglaw.osu.edu/blog.

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