The Trump Administration took a step on Friday to severely weaken state regulation of pesticides, taking away a tool that state regulatory officials say helps protect farmworkers and the environment.
The Environmental Protection Agency announced it would no longer allow state pesticide regulators to use special local needs (SLN) labels under Section 24(c) of the Federal Insecticide Fungicide and Rodenticide Act, the nation’s top law regulating pesticides, to restrict how pesticides are sprayed.
For decades, states have used these labels to restrict how pesticides are sprayed in order to meet local conditions, including to limit spraying of pesticides to certain times of year or weather conditions or adding training requirements.
For example, Oregon allows the use of zinc phosphide, a chemical used to target voles that disrupt grass seed production. But the state adds restrictions “well beyond what is on the pesticide label” so as not to harm migratory birds like geese, said Rose Kachadoorian, pesticides program manager at the Oregon Department of Agriculture.
This is the exact way a special local needs label should be used because “very few places in the country or world have our conditions,” said Kachadoorian, who previously served as president of the American Association of Pesticide Control Officials, (AAPCO), an organization of regulatory officials from states, territories and federal agencies.
But in recent years, the process has drawn the ire of the EPA after many states imposed restrictions on how the weed killer dicamba can be applied. Dicamba has been blamed for millions of acres of crop damage since 2017, and many states have responded by putting in restrictions, such as cut-off dates after which the pesticide could not be sprayed. The agency began exploring limiting states’ abilities to put in restrictions in 2018.
However, AAPCO, the National Association of State Departments of Agriculture, and many state agencies sent letters to the EPA saying that the tool is helpful and should not be taken away. The state agencies included Alabama, Georgia, Michigan, North Carolina and South Dakota.
In response, the EPA had promised to both the state of Alabama and AAPCO that it would “solicit public comment” before “adopting any changes in this regard.” However, in the official announcement Friday, the EPA said it determined that public comment was not necessary and “no alternative position was appropriate.” The EPA said it did receive numerous comments from stakeholders and provided feedback accordingly.
The agency said in a statement that it reevaluated 24(c) labels after seeing a recent increase in requests and determined FIFRA does not allow further restriction using these labels. The EPA will allow states to use 24(c) to remove restrictions on how pesticides can be applied.
But states have been using these labels to limit how pesticides are sprayed for decades, said Leo Reed, president of AAPCO and pesticide licensing manager for the Office of the Indiana State Chemist.
“FIFRA says what it says, and we all know what it says, but by policy, this has been allowed for many years, and it’s been allowed successfully,” Reed said. “It allowed us to be nimble, agile and respond to state needs.”
Reed, who co-authored an April 2019 letter asking to be included in the process, said he learned about the change when the new policy was first announced in a footnote in the October re-registration of dicamba. The policy was officially expanded to all other pesticides on Friday.
“It’s not that I don’t understand their position, it’s the fact that we haven’t had the heads up,” Reed said. “We try to term ourselves as co-regulators and this doesn’t feel like the way you would treat a co-regulator.”
Andrew Thostenson, pesticide program specialist at North Dakota State University who regulates pesticides in North Dakota, said this decision is based on dicamba but has consequences for every state in the country.
“These things are very pedestrian, they’re very non-controversial,” Thostenson said. “I can’t remember so much hoopla about an SLN until dicamba.”
Now, states will now have to restrict pesticides using section 24(a) of FIFRA, the agency said. This means that states will have to pass restrictions through state legislatures or an official rule-making process. This process is much more onerous and can often be political.
Reed said Indiana’s Pesticide Review Board is considering further restricting dicamba use in 2021 through a rule-making process.
But the process also opens states up to legal action, Reed said.
In Arkansas, the State Plant Board used 24(a) to impose restrictions on dicamba, and then was sued by Monsanto. The Plant Board lost the lawsuit on other grounds, including that the make-up of the board was unconstitutional.
The state of New York told DTN the changes could mean the state will not allow some pesticides to be sprayed at all.
Kachadoorian, whose state doesn’t have significant dicamba use, said the state’s uses of 24(c) labels to restrict dicamba were “totally legitimate.” States were trying to figure out what measures worked and which didn’t, and it allowed some growers to use dicamba while limiting the impact they have on other people.
“I think all states actually have a dog in this fight,” she said.