The U.S. Environmental Protection Agency (EPA) announced on October 31, 2018, that it is extending the registration of dicamba until December 20, 2020, for “over-the-top” use to control weeds in fields for cotton and soybean plants genetically engineered to resist dicamba. This extension was made in response to EPA’s review of new information and thus determined that the continued registration of these dicamba products meets FIFRA’s registration standards and using these products under the new safety measures will not affect endangered species.
To ensure products can be used effectively and safely around sensitives crops and other plants, the following restrictions were made for the 2019-2020 growing season:
• Only certified applicators may apply dicamba over-the-top (those working under the supervision of a certified applicator may no longer make applications)
• Prohibit over-the-top application of dicamba on soybeans 45 days after planting and cotton 60 days after planting
• For cotton, limit the number of over-the-top applications from 4 to 2 (soybeans remain at two over-the-top applications)
• Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset
• In counties where endangered species may exist, the downwind buffer will remain at 110 feet, and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
• Clarify the training period for 2019 and beyond, ensuring consistency across all three products
• Enhanced tank cleanout instructions for the entire system
• Enhanced label to improve applicator awareness on the impact of low pH’s on the potential volatility of dicamba
• Label clean up and consistency to improve compliance and enforceability
For more information, see: https://www.epa.gov/ingredients-used-pesticide-products/registration-dicamba-use-genetically-engineered-crops
There has been much discussion among EPA, the states, and registrants on the placement of the First Aid Statement on pesticide product labels. In response, EPA announced the availability of a final guidance document that clarifies where this statement should appear on products labels. The guidance document is available at Docket# EPA-HQ-OPP-2016-0545.
In summary, EPA will continue to require that Toxicity Category I products have first aid statements visible on the front panel. EPA may allow certain exceptions when reviewed and approved by the Agency. Products that are considered Toxicity Categories II and III must have these statements on a front, back, side or inside panel (any panel). First Aid statements continue to be optional for Toxicity Category IV products.
Syngenta Seeds LLC (“Syngenta”), a subsidiary of Swiss agrochemical company Syngenta, reached a settlement with the EPA for violations of The Federal Insecticide, Fungicide, Rodenticide Act (“FIFRA”) Worker Protection Standard. In a Consent Agreement and Final Order (CAFO) document, Syngenta agreed to a civil penalty of $150,000 and to implement a Supplemental Environmental Project (SEP) costing no less than $400,000.
The administrative complaint filed against Syngenta alleged that seasonal workers were exposed to chlorpyrifos and permethrin before the restricted entry interval (REI) of 24 hours had passed, were not warned by Syngenta employees before entering, and were not properly decontaminated after the incident. Exposure events occurred on two occasions in 2016 and 2017. The matter came to EPA attention through a worker reporting adverse reactions after working in the Syngenta field. The complaint goes further stating that the warning sign that notifies workers of pesticide applications was folded up, obscuring its full view from the workers and Syngenta employees failed to verbally inform the workers to not enter the restricted areas.
The resulting SEP will develop and help promote use of Worker Protection Standard (WPS) Compliance Kits, and train employees on how to comply with FIFRA Worker Protection Standards. Due to most of the violations occurring in-house, the SEP will focus on training Syngenta’s full-time employees. While the CAFO does not explain how the EPA came to the $400,000 figure, it explicitly notes the $400,000 “shall not include the following categories of Respondent’s costs: Respondent’s overhead, Respondent’s additional employee time and salary, Respondent’s administrative expenses, Respondent’s legal fees, and Respondent’s costs of oversight of the contractor who will develop and implement the SEP.” More details of the CAFO can be found here.
EPA announced on February 28, 2018, the availability of three final test guidelines for antimicrobial pesticides:
1. OCSPP 810.2000 – General Considerations for Testing Public Health Antimicrobial Pesticides
2. OCSPP 810.2100 – Sterilants, Sporicides, and Decontaminants
3. OCSPP 810.2200 – Disinfectants for Use on Environmental Surfaces.
This guideline series, Series 810 – Product Performance Test Guidelines: Group B – Antimicrobial Efficacy Test Guidelines provides recommendations on the implementation of laboratory studies used to evaluate the effectiveness of antimicrobial pesticides used to help protect public health. More information and documents about the revision of the product performance guidelines can be found at www.regulations.gov, in docket EPA-HQ-OPP-2015-0276.
The Environmental Protection Agency is set to moderately increase the maximum civil monetary penalty for violation of the Federal Insecticide, Fungicide and Rodenticide Act (”FIFRA”) from $19,057 to $19,466 per violation through the 2018 Civil Monetary Penalty Inflation Adjustment Rule. While this adjustment represents a modest increase annually, it is important to note that it is a significant increase from the original civil penalty of $5,000.
Prior to 2015, EPA had adjusted penalties only occasionally. However, under the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015, adjustments must now be made annually. The 2018 adjustment rule is the third annual update under the new approach.
As a result of the multiple adjustments which have now been made, multiple levels of FIFRA penalties are possible. To determine the penalty level applicable to an offense, one must first determine when the violation occurred and when the penalty is being imposed. Thus, a given violation which is repeated over a period of time could be subject to differing maximum penalty levels. More information can be found about how to accurately price open cases through the EPA’s 2018 guidance document found here.
The U.S. Environmental Protection Agency announced an agreement with Amazon Services LLC to settle allegations that Amazon committed nearly four thousand violations of the Federal Insecticide, Fungicide and Rodenticide Act, including selling and distributing imported pesticide products that were not registered for sale in the United States. In addition to paying a penalty of $1,215,700, Amazon will develop a multi-language online training course on pesticide regulations available to the public and marketers. Amazon will require that all marketers that are planning to sell pesticides on their website complete this training course.
For more information go to https://www.epa.gov/enforcement/amazon-services-llc-fifra-settlement.
Telisport W. Putsavage, a Principal in EnviroReg LLCSM and an environmental attorney, has been named to the recently-formed New York State Bar Association Cannabis Law Committee. Mr. Putsavage is a representative of the Environment & Energy Section, where he is on the Executive Committee and Co-Chairs the Pesticide Committee. New York instituted a Medical Marijuana Program in 2016, and as participation has grown, issues have arisen across a wide spectrum of legal matters.
Mr. Putsavage, with the assistance of Ms. Janine Gydus, also a Principal in EnviroReg, is representing one of the Registered Organizations under the New York Medical Marijuana Program with regards to the use of pesticides in the cultivation of cannabis. The cannabis from which the medical products are derived is cultivated in large commercial greenhouses, and growers face pest and disease pressure as would any such operation. Following principles of Integrated Pest Management and practices that would qualify for the National Organic Program, were the crop not cannabis, it is possible to minimize but not eliminate the use of pesticides.
For further information, please contact:
Telisport Putsavage, firstname.lastname@example.org
The Rohrabacher-Blumenauer Amendment, which forbids the expenditure of Federal funds to take any enforcement action against compliant state medical marijuana programs, has been continued in the Continuing Resolution (CR) passed by Congress and signed on February 9, 2018. The CR expires March 18, 2018, and is intended to provide a window for the drafting of an actual two-year budget.
The Amendment, originally known as Rohrabacher-Farr, has been in effect for several years. It provided the foundation which the Obama then expanded to a hands-off approach to compliant recreational programs as well. There is no guarantee that the Amendment will make it into the two-year budget. The House has been resistant, but recently support has come from Senators Leahy (D-VT) and Gardner (R-CO) to include the Amendment in repeated CRs.
For more information contact:
EPA and manufacturers of dicamba have reached an agreement to further minimize potential spray drift from the use of dicamba formulations that are used to control weeds in genetically modified cotton and soybeans. Manufactures of dicamba have voluntarily agreed to make a number of changes to labels that include increasing requirements for “over the top” use of these products and classify products as “restricted use”. Growers will see changes to labeling in time for 2018 growing season.
For more information see EPA’s Press Release, EPA and States’ Collective Efforts Lead to Regulatory Action on Dicamba
On July 28th 2016, President Obama signed the Safe and Accurate Food Labeling Act of 2015 enacting a national law for the labeling of food products containing genetically-modified organisms. The act was prompted in large part by various state labeling laws which were vehemently opposed by the agriculture industry and many major food producers. Most significantly a Vermont statute took effect July 1, 2016, that was much more comprehensive than the Federal act and was the only state law to actually take effect. In addition, a number of state laws were conditioned on a critical mass of at least four states with a total population of twenty million persons enacting similar laws. New York was actively considering such legislation which if enacted would have triggered the other conditional state laws. Although the Act will not take effect for at least two years while the U.S. Department of Agriculture promulgates regulations, the Vermont law is preempted immediately.
In addition to prohibiting state labeling disclosure laws, the Act also mandates that any GMO disclosure labeling must comply with the Act, which suggests that voluntary disclosures that exceed the requirements of the Act are also prohibited.
The Act defines a limited set of food products and product constituents that would be subject to the labeling requirement. The Act employs the term ‘bioengineered” to delineate the products subject to labeling. As a result, food product or ingredients produced through gene editing will not be subject to labeling.
The Act label statement required by the Act simply states that “more food information” is available without noting that the information relates to the presence of GMOs. The Act provides for communicating the required information through either label text, through a toll-free telephone call or by way a QRC (quick-read code) on the label. Many major producers are expected to utilize the QR code method, which requires a smartphone to read the code and internet access to reach the information. This mode of labeling drew particular opposition from labeling advocates, who contend that this method is not available to many low-income persons.
Despite major industry support for the Act, the legislation prompted schisms within both the major food production industry and the organic food industry. Some major producers continued to oppose any labeling, arguing that ultimately the state laws would not survive judicial review. Disputes among organic interests were prompted by some major players supporting the Act as the best route to nationwide labeling.
The U.S. Department of Agriculture is charged with promulgating implementing regulations, which it is given two years to complete.