A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE. 

JUDICIAL: Includes CWA, environmental, and labor issues.

In TENNESSEE CLEAN WATER NETWORK and Tennessee Scenic Rivers Association, Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant, NO. 3:15–cv–00424, 2017 WL 3476069 (M.D. Tenn. August 4, 2017), plaintiffs alleged violations of the Clean Water Act (CWA) related to TVA’s operation of a coal-fired power plant. Court dismissed some of plainitiffs’ claims, stating it was “barred from considering the allegations at issue in light of an ongoing State of Tennessee enforcement proceeding.” Court ordered TVA to excavate a “Non–Registered Site and move the coal ash waste . . . to a lined impoundment.” Due to costs TVA would incur in remediating its ash pond disposal areas, Court did not assess additional penalties.

Ron FOSTER, and Foster Farms, LLC, and Marketing & Planning Specalists Limited Partnership, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Scott Pruitt, in his official capacity as Administrator, Defendants, No. 14-16744, 2017 WL 3485049 (S.D.W. Va. August 14, 2017) concerned four streams on plaintiffs’ land and involved a challenge by plaintiffs to a Clean Water Act (CWA) Administrative Compliance Order (ACO) under the Administrative Procedures Act. Defendants filed counterclaim seeking injunctive relief and a civil penalty under the CWA. Defendants argued that one of the streams on property at issue is a “relatively permanent water.” Plaintiffs’ countered there is “no relatively permanent flow across it and no visible bed or bank.” Court denied summary judgment as it found a genuine dispute over “whether there was a relatively continuous flow across the hayfield,” and “whether the break in OHWM (ordinary high water mark) severs CWA jurisdiction.”

In CHEVRON MINING INC., Plaintiff–Appellant, v. UNITED STATES of America, United States Department of the Interior, and United States Department of Agriculture, Defendants–Appellees. American Exploration & Mining Association, Colorado Mining Association, and State of Montana, Amici Curiae. No. 15-2209, 863 F.3d 1261 (10^th Cir. July 19, 2017), mining company sued federal government under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), seeking “cost recovery and contribution for cleanup costs arising from a molybdenum mining operation.” District court granted in part mining company’s motion for summary judgment. Appellate court found that government was subject to owner liability under CERCLA, but not subject to arranger liability under CERCLA.

In R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor,1 Plaintiff, v. EUROAMERICAN PROPAGATORS, LLC, a California corporation; JOHN RADER, individually and as managing agent of the corporate defendant; GERALD CHURCH, individually and as managing agent of the corporate defendant, Defendants. No.: 17-cv-00131-H-RBB, 2017 WL 3478764 (S.D. Cal. August 14, 2017), plaintiff alleged violation of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) against defendant, owner of a nursery. Defendant countered claims against him should be dismissed because he is not an “employer” under the Fair Labor Standards Act (FLSA) or the MSPA. Court observed the FLSA defines “employer” to “include[ ] any person acting directly or indirectly in the interest of an employer in relation to an employee.” The court also observed the MSPA defines the term “agricultural employer” as “any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed, and who either recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker.” Court denied motion for summary judgment after concluding there were issues as to whether defendant “had authority over employee hiring/firing, conditions of employment, and employee pay.”

REGULATORY: Includes EPA, FWS, GIPSA, and NOAA  rules and notices. 

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a portion of a revision to the Alabama State Implementation plan (SIP) submitted by the State of Alabama on May 8, 2013. Info here.

Rule EPA is approving elements of State Implementation Plan (SIP) revisions from the State of Colorado to demonstrate the State meets infrastructure requirements of the Clean Air Act. Info here.

Rule EPA is taking final action to approve portions of revisions to the North Carolina State Implementation Plan (SIP) submitted by the State of North Carolina. Details here.

Rule EPA is taking direct final action to approve revisions to the Commonwealth of Virginia state implementation plan. Details here.

Rule EPA is updating the list of North American Industry Classification System (NAICS) codes subject to reporting under the Toxics Release Inventory (TRI) to reflect the Office of Management and Budget (OMB) 2017 NAICS code revision. Details here.

Rule EPA is proposing to approve portions of the October 26, 2015, and May 19, 2017, State Implementation Plan (SIP) revisions from Alabama replacing the Cross-State Air Pollution Rule (CSAPR) federal implementation plan. Info here.

Rule EPA is proposing to take four actions regarding the Alabama State Implementation Plan. Details here.

Rule EPA is proposing to approve changes to South Carolina’s State Implementation Plan (SIP) to revise minor new source review (NSR) regulations. Info here.

Rule EPA is issuing a supplement to its proposed approval of a revision to the South Carolina State Implementation Plan. Info here.

Rule EPA is proposing to update the list of North American Industry Classification System (NAICS) codes subject to reporting under the Toxics Release Inventory. Info here.

Rule EPA is proposing to approve a request from Tennessee for EPA to relax the Federal Reid Vapor Pressure (RVP) standard. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS invite the public to comment on the following applications for a permit to conduct activities intended to enhance the survival of endangered or threatened species. Details here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION: Notice GIPSA requests comments on the applicants for designation to provide official services in the South Carolina Area that was open for designation. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS closes the coastwide General category fishery for large medium and giant Atlantic bluefin tuna until the General category reopens on September 1, 2017. Details here.

Rule NMFS issues final rule to designate critical habitat for the threatened Gulf of Maine distinct population segment of Atlantic sturgeon. Details here.

Rule NMFS is publishing the expected harvest levels from 2017-2019 on St. George and St. Paul Islands, Alaska. Info here.

Notice NMFS has received a request from the Scripps Institution of Oceanography for authorization to take marine mammals incidental to a low-energy marine geophysical survey in the northeastern Pacific Ocean. Info here.