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Bill Introduced to Exempt Agriculture from CERCLA Air Emissions Reporting

A bipartisan group of eight U.S. senators have introduced a bill to exempt agricultural producers from reporting requirements under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). We’ve reported previously on the new mandate that would require livestock operations to report air emissions, the result of a U.S. Court of Appeals decision last year that struck down the EPA’s rule that exempted agriculture from the reporting requirements. The U.S. EPA has repeatedly requested the court for a delay of the new reporting mandate, now delayed until after May 1, 2018. The proposed legislation would establish a new exemption that would protect farmers from the upcoming reporting mandate.

Senator Deb Fischer (R-Neb.), a primary sponsor of the legislation, stated that “[t]hese reporting requirements were designed to apply to industrial pollution and toxic chemicals, not animal waste on a farm or ranch.” Co-sponsor Joe Donnelly (D-Ind.) assured farmers that requiring them to “spend their time and money on reports that will go unused by EPA would be burdensome and needless.”

The text of the senators’ proposed Fair Agricultural Reporting Method (FARM) Act, S. 2421, is available here. The proposal includes:

  • A statement that CERCLA reporting does not apply to air emissions from animal waste, including decomposing animal waste, at a farm.
  • A definition for “animal waste,” which means feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry or fish), and including animal waste that is mixed or commingled with bedding, compost, feed, soil, or any other material typically found with such waste.
  • A definition of “farm,” which means a site or area (including associated structures) that is used for the production of a crop or the raising or selling of animals (including any form of livestock, poultry, or fish) and under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000.
  • A statement that maintains the current exemption from CERCLA reporting for applications, storage and handling of registered pesticide products.

Senator Fischer introduced S.2421 on February 13 and the Senate has referred the bill to the Committee on Environment and Public Works.

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The Ag Law Harvest

Here’s a gathering of recent agricultural law news from OSU’s Agricultural & Resource Law Program:

CERCLA air emissions reporting further delayed.  The Circuit Court that ruled that farms are not exempt from air emissions reporting under CERCLA has delayed the starting date for farms to begin reporting until at least May 1, 2018.  Hopefully, the additional time will bring more clarity to livestock operations that could be subject to the reporting requirements about how to determine ammonia and hydrogen sulfide emissions, two substances that could trigger the reporting requirement.  Read more in our previous post or on the US EPA’s website.

WOTUS rule also delayed.  The U.S. EPA and U.S. Department of Army finalized a new rule on January 31, 2018 that would delay the effective date of the WOTUS rule to 2020.  The rule, revised by the EPA in 2015 and tied up in litigation since then, has been on hold due to a stay ordered by the Sixth Circuit Court of Appeals.  That stay could be lifted as a result of last week’s U.S. Supreme Court holding that courts of appeal are not the proper forum for challenges to the rule.  More on the court’s decision here and on the WOTUS rule here.

National Organic Program proposed rule comment period open.  Amendments to the National List of Allowed and Prohibited Substances allowed for organic production or handling are under consideration.  USDA’s Agricultural Marketing Service is taking comments on the proposed rule until March 19, 2018.  More information is here.

Ohio invasive plants list revised.  The Ohio Department of Agriculture has finalized a revised list of invasive plants that may not be sold or distributed in Ohio.  The list of 36 plants is available here.

Agricultural fertilizer applicator certification exam now available.  As a result of regulatory revisions, a producer who applies fertilizer to 50 acres of more of land in agricultural production may now meet Ohio’s certification requirement by passing a written exam rather than attending educational sessions.  Exam locations and registration are here and OSU’s training manual is here.

Ohio legislation on the move:

  • Wind turbine setbacks. Senate Bill 238 proposes changes to the application process and setbacks for “economically significant” wind farms capable of generating five megawatts or more.  Sponsored by Dolan (R-Chagin Falls).   First hearing before the Senate Energy & Natural Resources Committee.
  • Riparian buffers.  House Bill 460 would exempt qualifying riparian buffers in the Western Basin of Lake Erie from property taxation, reimburse local taxing units for their consequent loss of income and require soil and water conservation districts to assist landowners with establishing and maintaining riparian buffers.  Sponsored by Patterson, (DJefferson) and Sheehy (D-Oregon).  First hearing on January 30 before the House Energy & Natural Resources Committee.
  • Poultry and livestock on residential property. House Bill 175 would prevent county and township zoning authorities from prohibiting the keeping and breeding of chickens, fowl, goats, rabbits and similar small animals for noncommercial purposes on any residential property and would establish housing standards for such animals.   Sponsored by Brinkman (R-Cincinnati).  First hearing on January 30 before the House Agriculture and Rural Development Committee.
  • Apiary immunity. House Bill 392 would provide persons who register their apiaries with immunity from personal injuries resulting from bee stings.  Read our post.  Sponsored by Stein (R-Norwalk).  Reported out of House Economic Development, Commerce & Labor Committee on January 23.
  • Alfalfa products. Senate Resolution 382 recognizes the existence of two alfalfa products in accordance with the Ingredient Definition Committee of the Association of American Feed Control Officials.  Sponsored by LaRose (R-Hudson). Second hearing before the Senate Agriculture Committee scheduled for February 6.
  • Official state structure. House Bill 12 proposes designating the barn as the official historical architectural structure of Ohio.  Passed House on 3/22/17, second hearing before the Senate Agriculture Committee scheduled for February 6.
  • Idle wells. House Bill 225 revises Ohio’s idle and orphaned oil and gas well program.  Read our post.  Sponsored by Thompson (R-Marietta).  Passed House on January 17, introduced in Senate on January 22.

Just introduced:

  • Labor camps. House Bill 490 proposes to exempt certain residential buildings from agricultural labor camp laws.  Introduced in the House by Stein (R-Norwalk) on January 30.
  • Energy resources. House Concurrent Resolution 22 expresses support for the importance of Ohio’s energy resources and infrastructure in furthering Ohio’s economic development.  Introduced in the House by Hill (R-Zanesville) on January 16.

For other agricultural and food law updates from around the country, check out the National Agricultural Law Center’s Ag & Food Law Blog.

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Ohio Supreme Court rules that landowners can challenge CAUV values before the Board of Tax Appeals

Decisions announced today by the Ohio Supreme Court will allow landowners to challenge Current Agricultural Use Valuation (CAUV) land values established by Ohio’s tax commissioner by appealing the values to the Board of Tax Appeals.

Twin rulings in cases filed by a group of owners of woodland enrolled in CAUV, Adams v. Testa, clarify that when the tax commissioner develops tables that propose CAUV values for different types of farmland, holds a public hearing on the values and adopts the final values by journal entry, the tax commissioner’s actions constitute a “final determination” that a landowner may immediately appeal to the Board of Tax Appeals.   The Board of Tax Appeals had argued that the adoption of values is not a final determination and therefore is not one that a landowner may appeal to the Board.

The tax commissioner forwards the CAUV tables to the county auditors, who must use the values for a three year period.  An inability to appeal the values when established by the tax commissioner would mean that a landowner must wait until individual CAUV tax values are calculated by the county auditor, who relies upon the tax commissioner’s values to calculate the county values.    As a result of today’s decision, landowners may appeal the values as soon as the tax commissioner releases them.

The landowners also claimed that the process and rules for establishing the CAUV values are unreasonable and not legal.  However, the Court rejected those claims.

For an excellent summary of the Adams v. Testa cases by Court News Ohio, follow this link.

 

 

 

 

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New care standards for Ohio veal and dairy to begin in 2018

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

Image of dairy cattle in field_0Veal and dairy producers in Ohio will be subject to new livestock care standards in 2018. Producers were first made aware of these changes when the Ohio Livestock Care Standards for veal, dairy and other species were originally adopted in September of 2011 after the passage of State Issue 2, a constitutional amendment that required Ohio to establish standards for the care of livestock. Since the new care standards make significant changes to the management of veal and dairy, producers were given a little more than six years to transition their facilities and practices accordingly. The new standards will be effective on January 1, 2018.  Producers with veal calves and dairy cattle are encouraged to understand the regulations and make the required changes to their operations by January 1.

Changes to veal regulations

The regulations for veal address housing for veal calves weighing 750 pounds or less. Currently, veal calves may be tethered or non-tethered in stalls of a minimum of 2 feet x 5.5 feet. Next year, the following housing standards will apply:

  • Tethering will be permitted only to prevent naval and cross sucking and as restraint for examinations, treatments and transit, if:
    • The tether is long enough to allow the veal calf to stand, groom, eat, lie down comfortably and rest in a natural posture;
    • The tether’s length and collar size is checked every other week and adjusted as necessary.
  • Individual pens must allow for quality air circulation, provide opportunity for socialization, allow calves to stand without impediment, provide for normal resting postures, grooming, eating and lying down, and must be large enough to allow calves to turn around.
  • By the time they are ten weeks old, veal calves must be housed in group pens. The regulations currently require that group pens meet the above standards required for individual pens and also must contain at least two calves with a minimum area of 14 square feet per calf, must separate calves of substantially different sizes and that calves must be monitored daily for naval and cross sucking and be moved to individual pens or provided other intervention for naval or cross sucking.

The veal regulations, including both the current rules and the rules that will become effective January 1, are available here.

Changes to dairy cattle regulations

There is only one change to the dairy care standards. As of January 1, docking the tails of dairy cattle will only be permissible if:

  • Performed by a licensed veterinarian; and
  • Determined to be medically necessary.

The dairy cattle standards, including the current tail docking rule and the rule that becomes effective January 1, are here.

More information is also available in this press release recently published by the Ohio Department of Agriculture and on the website for Ohio’s Livestock Care Stand

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Ohio law students excel at American Agricultural Law Association Conference

Evin and Devon AALA 2017

The American Agricultural Law Association held its national conference last week in Louisville, Kentucky, and two Ohio law students from OSU Moritz College of Law and Capital University Law School took top honors in the student competitions.  Evin Bachelor and  Devon Alexander joined forces with U. of Houston law student Sara Luther and finished first in the Student Quiz Bowl competition.  The Quiz Bowl requires law students to correctly answer questions about law, agriculture and agricultural law.

Bachelor also entered and took first place in the Student Research Poster Competition with his research project titled “Ohio: The Midwestern Ag Mediation Holdout.” Bachelor discussed the potential for Ohio to become one of the last midwestern states to engage in USDA’s Agricultural Mediation Program.  Bachelor is a third year law student at OSU’s Moritz College of Law and Alexander is a second year law student at Capital University Law School.  Both hope to work in the agricultural law arena after law school.

OSU was able to send the students to the conference due to the generous support of the Paul L. Wright Endowment in Agricultural Law at OSU.

For more information about the American Agricultural Law Association, visit https://www.aglaw-assn.org/.

 

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USDA seeks comments on regulatory reform

The United States Department of Agriculture (USDA) wants to hear from you.   The agency published its “Identifying Regulatory Reform Initiatives” notice in the Federal Register on July 17 seeking “ideas from the public on how we can provide better customer service and remove unintended barriers to participation in our programs in ways that least interfere with our customers and allow us to accomplish our mission.”

The notice derives from the Regulatory Reform Task Force established by President Trump’s February 24, 2017 Executive Order 13777 on “Enforcing the Regulatory Reform Agenda”.   The order requires the heads of federal agencies to evaluate existing regulations and make recommendations to repeal, replace or modify regulations that create unnecessary burdens.

Specifically, the USDA invites the public to evaluate the agency’s existing regulations.  The agency poses several questions and encourages commenters to respond in detail to the questions:

  1. Are there any regulations that should be repealed, replaced or modified?
  2. For each regulation identified in question one, identify whether the regulation:
    • Results in the elimination of jobs, or inhibits job creation;
    • Is outdated, unnecessary, or ineffective;
    • Imposes costs that exceed benefits;
    • Creates a serious inconsistency or otherwise interferes with regulatory reform initiatives and policies;
    • Is inconsistent with requirements that agencies maximize the quality, objectivity, and integrity of the information they disseminate;
    • Derives from or implements previous presidential directives that have been rescinded or substantially modified.

The comment process offers the agricultural community an opportunity to draw attention to USDA regulations that create unnecessary or unintended negative impacts on agriculture.   Considering the wide range of programs and regulations administered by the USDA in areas such as crop and livestock insurance; Farm Service Agency programs; commodity standards, grading and inspections; animal and plant health; and agricultural exports, it’s likely that agricultural producers will have thoughts to share with the agency.   To that end, USDA will accept comments for the next year, but will review the comments in four phases.  The deadline for the first review is September 15, 2017.

To read the agency’s notice and instructions for submitting comments on regulatory reform, visit this link.

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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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