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


JUDICIAL: Includes CWA, environmental, and administrative law issues.

In CONSERVATION LAW FOUNDATION, INC., Plaintiff, Appellant, v. Scott PRUITT, Administrator of the United States Environmental Protection Agency; Deborah Szaro, in her capacity as Acting Regional Administrator, United States Environmental Protection Agency, Region 1, Defendants, Appellees. Conservation Law Foundation, Inc.; Charles River Watershed Association, Inc., Plaintiffs, Appellants, v. U.S. Environmental Protection Agency, Scott Pruitt, Administrator; U.S. Environmental Protection Agency, Region I, Deborah Szaro, Acting Regional Administrator, Defendants, Appellees, No. 17-1166, No. 17-1354, 2018 WL 524758 (1st Cir. January 24, 2018), plaintiffs appealed dismissal of their claims against the Environmental Protection Agency (EPA) and issue on appeal concerned whether the EPA’s role in developing and approving “total maximum daily loads” (TMDLs) in Massachusetts and Rhode Island required the agency to secure NPDES permits. Court observed that under the Clean water Act (CWA), the EPA must send notice to a discharger of storm water whenever the agency “decides that an individual permit is required for the discharge.” EPA argued the permits were not required. Appellate court concluded EPA’s approval of the TMDLs “was not a decision that an individual permit was required, that it therefore did not trigger the notice requirement.” Affirmed for EPA.

In Willie ABNER, et al., Plaintiffs, v. UNITED STATES PIPE & FOUNDRY, COMPANY, LLC, et al., Defendants, 2:15-cv-02040-KOB, 2018 WL 522771 (N.D. Ala. January 23, 2018), plaintiffs claimed defendants operated a pipe-making facility that released chemical contaminants “into areas occupied or frequented by Plaintiffs, causing personal injury and property damage.” Plaintiffs alleged negligence, negligence per se and personal injury. Court found the “federally required commencement date” provided in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) arguably applied to plaintiffs’ claims. Defendants’ motion for summary judgment denied.

In ROCKY MOUNTAIN WILD, INC., a Colorado non-profit corporation, Plaintiff–Appellant, v. UNITED STATES FOREST SERVICE, a federal agency; United States Department of Agriculture, a federal agency, Defendants–Appellees, No. 17-1119, 878 F.3d 1258 (10th Cir. January 5, 2018), plaintiff filed Freedom of Information Act (FOIA) action against United States Forest Service (USFS) and United States Department of Agriculture (USDA), “seeking records in third-party contractors’ possession regarding ski development.” Case involved a developer that wanted to exchange privately owned land for federal land. The developer made an agreement with the Forest Service to hire a third-party contractor to prepare an environmental impact statement (EIS). Lower court ruled the records sought by plaintiff were “not under agency control,” and plaintiff appealed. Appellate court found the a third-party contractor was “not a federal agency for purposes of FOIA,” and that “documents prepared by third-party contractor were not USFS’s records.” Affirmed.


LEGISLATIVE:

S. 2329: A bill to reauthorize and amend the Water Infrastructure Finance and Innovation Act of 2014. Text is now available.

S. 2332: A bill to establish the Kennedy-King National Historic Site in the State of Indiana. Text is now available.

S. 2335: A bill to authorize the Secretary of the Interior and the Secretary of Agriculture to issue permits for recreation services on lands managed by Federal agencies. Referred to the Senate Committee on Energy and Natural Resources.

S. 2337: A bill to provide for the designation of certain wilderness areas, recreation management areas, and conservation areas in the State of Colorado. Referred to the Senate Committee on Energy and Natural Resources.


REGULATORY: Includes USDA, EPA, FDA, ITA, and NOAA rules and notices. 

AGRICULTURE DEPARTMENTNotice USDA has submitted information collection requirement(s) to OMB for review and clearance. Title: Volunteer Programs. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes tolerances for residues of chlorfenapyr, 4-bromo-2-(4-chlorophenyl)-1-(ethoxymethyl)-5- (trifluromethyl)-1H-pyrrole-3-carbonitrile, in or on tea, dried. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

Rule establishes tolerances for residues of difenoconazole in or on multiple commodities which are identified and discussed later in this document. Info here.

Rule establishes time-limited tolerances for residues of flonicamid in or on prickly pear, fruit and prickly pear, pads. Details here.

Rule establishes an exemption from the requirement of a tolerance for the calcium salts of phosphorous acid. Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of the Cry51Aa2.834_16 protein derived from Bacillus thuringiensis in or on cotton, when used as a plant- incorporated protectant. Info here.

Rule EPA is proposing to approve a Clean Air Act (CAA) section 111(d)/129 plan (the “plan”) submitted by the Division of Air Quality of the North Dakota Department of Health on June 12, 2014. Info here.

Rule proposes corrections and updates to regulations for source testing of emissions. Details here.

FOOD AND DRUG ADMINISTRATIONNotice FDA is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Title: Irradiation in the Production, Processing, and Handling of Food. Info here.

INTERNATIONAL TRADE ADMINISTRATIONNotice ITA preliminarily determines that ripe olives from Spain are being, or are likely to be, sold in the United States at less than fair value (LTFV). Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 feet length overall (LOA) using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. Info here.

Rule NMFS is hereby making technical amendments without altering the substance of the regulations that govern importation into the United States of tuna product and dolphin-safe tuna labeling in the United States under the Marine Mammal Protection Act. Info here.

Rule NMFS proposes to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council. Details here.

Notice NOAA invites the general public and other Federal agencies to take this opportunity to comment on a revised, and continuing information collection. Title: Atlantic Highly Migratory Species Permit Family of Forms. Info here.