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

JUDICIAL: Includes CWA

In Ohio Valley Envt’l Coal. v. Eagle Natrium, LLC, No. 5:19-CV-236, 2020 WL 1443046 (N.D.W. Va. Mar. 24, 2020) the defendants moved for summary judgment to dismiss the plaintiffs’ complaint. The plaintiffs filed suit against the defendants under the citizen suit provision of the Clean Water Act (“CWA”), alleging that the defendants had made discharges of pollution from its plant in Natrium, West Virginia, in violation of its CWA permit. The defendant has moved for summary judgment, a motion that asks the court to dismiss a case if there is “no genuine issue of fact or law,” arguing that the plaintiffs’ claim is barred because the West Virginia Department of Environmental Protection (“WVDEP”) diligently prosecuted the defendant’s violations in 2010 and 2013 judicial consent orders. The CWA gives private citizens the right to file suit against CWA violators to help supplement government enforcement of the Act. However, the CWA also provides that citizens are barred from filing citizen suits if the Environmental Protection Agency (“EPA”) or a state agency has already commenced and is “diligently prosecuting” an enforcement action. According to the court, a plaintiff may not overcome the “diligence” requirement merely because the government is not prosecuting as aggressively as the plaintiff would like. The court also noted that diligence on the part of the government is presumed and is generally a very high bar to overcome.

Ultimately, the court concluded that the plaintiffs could not bring suit against the defendants for violating the CWA by discharging Benzene hexachlorides (“BHC”) in greater amounts than allowed in its CWA permit because WVDEP had diligently prosecuted the defendant by requiring it to submit a BHC compliance plan in 2013. However, the court concluded that the plaintiffs could bring suit against the defendants for violating the CWA by discharging mercury in greater amounts than allowed in its CWA permit because WVDEP failed to follow the necessary procedure to modify the defendant’s CWA permit to allow increased mercury discharge. Therefore, WVDEP had failed to diligently prosecute the defendant for discharging mercury beyond the limits of its CWA permit.

REGULATORY: Includes NOAA

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Temporary rule opening directed fishing for pollock in the West Yakutat District of the Gulf of Alaska. Info here.

Final rule announcing routine inseason adjustments to the harvest limits for incidental halibut retention in the primary sablefish fishery. Info here.

LEGISLATIVE: Includes Tennessee

TENNESSEE

SB 2139 repeals requirement that aerial applicators of pesticides notify the department of agriculture prior to making aerial applications of pesticides via an online reporting system. Info here.