A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
ANNOUNCEMENT:
Join us Wednesday, July 25th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Compliance with DOL and Immigration Laws and Regulations for Agricultural Businesses. Details available here.
REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.
JUDICIAL:Includes CWA and food safety issues.
In FRESHWATER ACCOUNTABILITY PROJECT, Plaintiff, v. PATRIOT WATER TREATMENT, LLC, et al., Defendants, NO. 4:17CV1361, 2018 WL 3417305 (N.D. Ohio July 13, 2018), plaintiff sought an injunction under the citizen enforcement suit provision of the Clean Water Act (CWA). Plaintiff claimed defendants “failed to comply with effluent limits and performance standards for industrial wastewater discharge under the National Pollution Discharge Elimination System (NPDES).” Defendant (City of Warren) operated the publicly-owned treatment works (POTW) at issue and countered plaintiff lacked standing because “citizen suits cannot be filed against regulators for an alleged failure to implement a specific regulation.” Court concluded plaintiff had standing to sue because the City “was not taking any action to enforce pollutant discharge requirements against private entities.” Defendant’s motion to dismiss denied.
In POST FOODS, LLC, et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RICHARD SOWINSKI, Real Party in Interest, B284057, 2018 WL 3424800 (Cal. Ct. App. July 16, 2018), real party in interest (Sowinski) claimed Petitioners’ breakfast cereals “were required by California’s Proposition 65 to display cancer and reproductive harm warnings because they contain acrylamide.” Post Foods was denied summary judgment by lower court and on appeal, argued that warnings on cereals are preempted by federal law “because they would pose an obstacle to federal policy objectives to increase Americans’ consumption of whole grains.” Petitioners cited federal statutes and Food and Drug Administration (FDA) letters to California regulators “cautioning against Proposition 65 warnings on cereals because they could mislead consumers and cause them to avoid whole grains.” Appellate court found Sowinski’s Proposition 65 claim preempted by federal law.
LEGISLATIVE:
H.R. 4032: Gila River Indian Community Federal Rights-of-Way, Easements and Boundary Clarification Act. This bill has been added to the House’s schedule for the coming week.
S. 3216: A bill to amend the Indian Civil Rights Act of 1968 to extend the jurisdiction of tribal courts to cover crimes involving sexual violence. Referred to the Senate Committee on Indian Affairs which will consider it before sending it to the Senate floor for consideration.
H.R. 6386: To direct the Secretary of Agriculture, in consultation with other appropriate entities, to develop and carry out a national science-based education campaign to increase public awareness regarding the use of technology in food and agriculture. Referred to the House Committee on Agriculture.
H.R. 6385: Making appropriations for the Department of State, foreign operations, and related programs for the fiscal year ending September 30, 2019. Referred to the House Committee on Appropriations.
H.R. 6383: To provide funds to enable counties to make competitive grants to qualified local units of government to address major community development and public infrastructure challenges. Referred to the House Committee on Agriculture.
H.R. 6381: To memorialize victims and survivors of the occupation of Guam, provide for additional development at the War in the Pacific National Historical Park. Referred to the House Committee on Natural Resources.
REGULATORY: Includes USDA, EPA, FSA, and NOAA rules and notices.
AGRICULTURE DEPARTMENT:
Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Evaluation of the Independent Review of Applications Process. Info here.
ENVIRONMENTAL PROTECTION AGENCY:
Rule EPA is approving a revision to the Minnesota sulfur dioxide State Implementation Plan (SIP) for the Flint Hills Resources, LLC Pine Bend Refinery (FHR) as submitted on February 8, 2017. Details here.
Rule EPA is approving, under the Clean Air Act (CAA), revisions to Ohio’s state implementation plan (SIP) as requested by the Ohio Environmental Protection Agency (OEPA) on March 10, 2017, and supplemented on July 18, 2017. Info here.
Rule EPA is proposing a determination of attainment by the attainment date and a clean data determination (CDD) for the 2006 24-hour fine particulate matter (Logan, Utah (UT)-Idaho (ID) nonattainment area. Details here.
Rule that the State of Idaho made a submission to the Environmental Protection Agency (EPA) to address these requirements. The EPA is proposing to approve the submission. Info here.
Rule EPA is proposing to approve revisions to the Illinois State Implementation Plan (SIP) to establish a general framework for permits-by-rule (PBR) and specifically provide a PBR for small boilers. Info here.
FARM SERVICE AGENCY: Rule the 2017 Wildfires and Hurricanes Indemnity Program (2017 WHIP) will provide payments to eligible producers who suffered eligible crop, tree, bush, and vine losses resulting from hurricanes and wildfires that occurred in the 2017 calendar year, as authorized by the Bipartisan Budget Act of 2018. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS is adjusting the commercial aggregated large coastal shark (LCS) and hammerhead shark management group retention limit for directed shark limited access permit holders in the Atlantic region from 3 LCS other than sandbar sharks per vessel per trip to 36 LCS other than sandbar sharks per vessel per trip. Info here.
Rule establishes limits on fishing effort by U.S. purse seine vessels in the U.S. exclusive economic zone and on the high seas between the latitudes of 20[deg] N and 20[deg] S in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean. Info here.
Rule NMFS is closing the Southern Exclusion Zone (SEZ) to deep-set longline fishing through December 31, 2018, for all vessels registered under the Hawaii longline limited access program. Details here.
Notice the Regional Administrator, West Coast Region, NMFS, has made a preliminary determination that an application for an Exempted Fishing Permit warrants further consideration. Info here.