Dicamba Tug of War

EPA May Limit State Restrictions on Pesticide Use, Such as Dicamba

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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EPA has confirmed it is considering limiting state pesticide restrictions in response to the growing number of 24(c) labels restricting dicamba use in individual states. (DTN photo graphic)

ROCKVILLE, Md. (DTN) -- After months of denials and vague language, EPA has confirmed it is considering limiting the ability of states to restrict pesticide use beyond the federal label.

State regulators are expressing alarm at this development, particularly those dealing with widespread dicamba injury, which appears to be the catalyst for EPA's announcement.

At issue is Section 24(c) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which allows states to grant "special local needs" (SLN) labels that supplement federal pesticide labels. Several states in the Midwest and South have used 24(c) labels to limit use of new dicamba formulations for the past few years, in an effort to control overwhelming off-target injury complaints to crops and plants. For example, most recently, Illinois granted a 24(c) label with a June 30 cut-off date for XtendiMax, Engenia and FeXapan in the state.

EPA warned state regulators that it did not like this use of 24(c) in the summer of 2018. (See the DTN story here: https://www.dtnpf.com/…). But the agency continued to approve state 24(c) labels for dicamba herbicides for 2019.

Now the agency is formally re-evaluating this regulatory process.

"Due to the fact that section 24(a) allows states to regulate the use of any federally registered pesticide, and the fact that some states have instead used 24(c) to implement cut-off dates (and/or impose other restrictions), EPA is now re-evaluating its approach to reviewing 24(c) requests and the circumstances under which it will exercise its authority to disapprove those requests," the agency said in a statement on its website. "Before making any changes in this regard, EPA intends to take public comment on any potential new approaches before adopting them.

"EPA is not making any immediate changes in this area and does not expect any potential changes will impact 24(c) requests that states submit ahead of the 2019 growing season," the agency added.

State regulators are prepared to fight to retain this use of 24(c) registrations, which have long been used to address state regulatory needs, such as environmental concerns, said Rose Kachadoorian, a pesticide regulator from Oregon serving as president of the American Association of Pesticide Control Officials (AAPCO).

"This is something AAPCO will pursue with vigor," she told DTN. "The ramifications of saying states can't put restrictions in special local needs labels is really concerning to me. It's taking away states' right to protect their environment."

The agency may inadvertently endanger use of dicamba in these states if it stops allowing this use of 24(c), Kachadoorian added.

"If states wanted to flat out prohibit dicamba use, they would do that," she said. "But they are trying to make sure that this technology can co-exist with non-dicamba soybeans, tomatoes, all other kinds of crops. And they are using 24(c) to allow the use of the chemical in the state safely."

The actual language of Section 24(c) only permits states to grant additional uses of a federal pesticide. But EPA has long permitted states to add restrictions for environmental, crop and worker safety, Kachadoorian said.

Oregon has some of the most numerous 24(c) labels in the country, and some of those are more restrictive than the federal labels, she said. For example, on one 24(c) label, the state successfully added a 300-foot no-spray buffer next to waterways to protect surface water that could contain salmon species.

"This is a process that has been working, it's not broken, and there is nothing to fix here," Kachadoorian said. "This process has enabled growers to use pesticides more effectively and safely."

That EPA is pursuing these changes specifically because of dicamba is alarming, she added. "We don't want one chemical to somehow affect all these valuable pesticide registrations that are very economically important to our states and to our growers."

North Dakota State University Extension pesticide program specialist Andrew Thostenson suggested legal problems for the federal agency are at play here.

Even as state regulators struggle to reconcile growers' need for dicamba with the overwhelming off-target injury complaints, EPA is battling its own dicamba tug-of-war, he said.

"EPA is under duress because they have twin legal threats: Registrants who claim they have fulfilled all the obligations under the law to market these new formulations and environmental groups that desire to halt the use," he said. "The latter have and are suing EPA, the former are likely to act if they feel they are not being treated fairly under the law."

AAPCO will soon issue a letter to EPA detailing state regulator concerns, and is working to clarify when and if the agency will conduct an official public comment period on any proposed changes, Kachadoorian said.

For now, all 2019 state 24(c) restrictions for dicamba still stand. But 2020 could be different, Thostenson noted.

"EPA is putting everyone on notice for 2020," he said. "I suspect this will be a very messy process moving forward."

See EPA's announcement and its guidance on Section 24(c) here: https://www.epa.gov/….

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com.

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Emily Unglesbee