ROCKVILLE, Md. (DTN) -- State regulators are reeling from a sudden apparent policy change by EPA that will make restricting pesticides -- such as dicamba -- beyond the federal label much harder for states to accomplish in the years ahead.
The policy change was announced in a single footnote, buried amid dozens of pages of regulatory documents accompanying EPA's three new dicamba registrations released on Oct. 30. The footnote is only three sentences long, but it packs a punch, regulators and legal experts said. It will require states to go through state law or rulemaking processes if they want to further restrict a federal pesticide, like dicamba.
That means in 2021, most states may be limited to the federal dicamba labels, and unable to implement local dicamba cutoffs and restrictions before the spray season. Only Arkansas's cutoff date of May 25, which has gone through a state rulemaking process each year, is likely to remain in place.
That footnote also reverses decades of precedent, breaks EPA's past promises to the states and threatens to damage the longstanding cooperative relationship between federal and state regulators.
At issue is Section 24(a) and 24(c) of the Federal, Insecticide, Fungicide and Rodenticide Act (FIFRA), EPA's governing law. Section 24(a) establishes that states have the right to regulate federal pesticides through state legislatures or rulemaking procedures, a time-consuming and often political process that can take years.
Section 24(c) is more nimble. It grants states the right to issue "special local needs labels" on an annual basis, to address local agricultural, environmental or public health needs by granting "additional uses" to federal pesticide labels.
For nearly three decades, EPA has interpreted Section 24(c) as also permitting states to "impose more restrictive measures" to federal labels. In 1996, the agency formalized this interpretation and published it as a guidance for states; it still stands on the agency's website here: https://www.epa.gov/…. Restrictive 24(c) state labels became particularly popular starting in 2017, as states used special local needs labels to further restrict dicamba pesticides in an effort to control widespread off-target injury reports from the herbicides.
THE FIRST STIRRINGS OF CHANGE
In the spring of 2019, in the midst of yet another wave of state-by-state restrictions to EPA's federal dicamba labels, the agency issued a warning to the states that it was "re-evaluating" this practice and might not allow it to continue, because it violated the actual language of Section 24(c).
See more here: https://www.dtnpf.com/…
State regulators rushed to defend the practice, and pesticide officials from 10 states across the country wrote to EPA urging them not to change this policy. So did the National Association of State Departments of Agriculture (NASDA) and the Association of American Pesticide Control Officials (AAPCO).
Rick Keigwin, then director of the EPA's Office of Pesticide Programs, reassured the states that no changes would be made to the agency's 24(c) interpretation without their input.
"Before adopting any changes in this regard, we will solicit public comment on our proposed new approaches," Keigwin wrote to both AAPCO and Alabama state regulators in letters sent in the spring and summer of 2019. "We look forward to a robust public dialogue with our stakeholders, partners and co-regulators on this matter."
EPA DROPS ITS DECISION -- SORT OF
That "robust public dialogue" never happened, state regulators told DTN.
"There was no public comment period, no consultation," said Leo Reed, an Indiana pesticide regulator and president of AAPCO.
Instead, on page 20 of an EPA document supporting the new 2020 dicamba registrations, EPA included a single footnote, stating that:
"FIFRA section 24(a) allows a state to regulate pesticides more restrictively than EPA under the state's own authority. However, some of the states that have imposed cut-off dates on dicamba uses have done so under section 24(c). Section 24(c) only authorizes states to issue registrations for additional uses of federal registrations to meet special local needs; if states wish to impose further restrictions on the dicamba products, or any other federally registered pesticides, they should do so under section 24(a) of FIFRA."
In an emailed response to DTN, EPA confirmed that this footnote represents an official change to its policy for all pesticides, stating that: "EPA has determined that moving forward, EPA may disapprove any state registrations under FIFRA section 24(c) that further restrict use of pesticides registered by EPA, regardless of the chemicals involved. If a state wishes to further restrict use of a pesticide, they must do so under section 24(a) of FIFRA."
The agency said the previously promised public comment period was "not appropriate as section 24(c) is being properly interpreted as written."
However, for now, the agency's guidance to Section 24(c), which permits additional state restrictions, still stands on its website.
The result is that state officials remain in a confusing legal limbo, said Brook Duer, a staff attorney at Penn State's Center for Agricultural and Shale Law.
While EPA's stance might be supported by the language of the law, the longstanding, published interpretation permitting 24(c) restrictions represents what's known as a "binding norm" under federal administrative law, he said. "So unilaterally reversing it through a footnote, without a more transparent and public process -- like what EPA previously represented would be undertaken -- is certainly unorthodox and may even create the basis for litigation to prevent the reversal," Duer said.
"This is still totally up in the air," he added. "There's no guidance on what happens to restrictive 24(c) labels that are in effect right now -- is this a blanket invalidation of them all?"
In its press release announcing the new dicamba registrations and noting this change to 24(c), EPA linked to a very specific portion of its 24(c) guidance, a section that prohibits states from issuing labels that would "negate or void" federal label restrictions. That suggests this might be how the agency intends to implement this sudden policy change without any public deliberation, Duer said. But that portion of the guidance is immediately followed by sections of equal weight that specifically permit restrictive state 24(c) measures, he added.
"So they are cherry-picking their own previous guidance to fit the argument they suddenly want to make now," he said. "If that sounds shifty, it's because it is."
"This is not how a federal agency should be conducting itself," he added. "Doing [this] as a footnote and slipped into a press release does not engender a positive relationship with the states who are a significant portion of the 'boots on the ground' in pesticide regulation for the benefit of all."
STATE REGULATORS REACT
State pesticide regulators told DTN the move by EPA was surprising and demoralizing.
"That was disappointing," said Rose Kachadoorian, a pesticide regulator from Oregon, a state with dozens of 24(c) registrations in place. "We are co-regulators with EPA, and we believe we have a good relationship with EPA. But this doesn't feel like a co-regulator relationship. A change in the agency's interpretation of a law should go through a public process, especially when it deviates from a longstanding practice that EPA has said was fine in [its written guidance]."
States do still have the authority from Section 24(a) to create more restrictions on federally registered pesticides, AAPCO's Reed said. But he worries that forcing states to create entirely new state rules or laws regarding a pesticide limits their ability to react quickly to new pesticides or new environmental conditions or concerns.
The new federal dicamba labels, for example, list specific cutoff dates: June 30 in soybeans and July 30 in cotton. Those dates aren't necessarily best for every cotton- and soybean-producing state, which range widely in geography, climate and landscape, noted Josh Stamper, a Minnesota pesticide regulator. His state has enacted a June 20-cutoff date for the past three years for dicamba use.
"Every year, we've worked with commodity groups, registrants and universities to evaluate, do we need any last-minute changes? Should we extend the cutoff date?" he explained. "The challenge with using rulemaking instead of 24(c) is that it doesn't give you the ability to respond to changing rules, changing needs or changing weather."
State rulemaking processes can vary, but for many states, proposing, drafting, accepting public comment on new regulations and working through legislatures to enact them can take at least two years, added AAPCO's Reed.
"And in the meantime, your flexibility is gone," he noted. "Once that regulation is in place, if you need to tighten it or change it, that's another two-year process."
Kachadoorian said regulators are also frustrated that it appears EPA is altering its stance on 24(c) to address a single pesticide, dicamba, potentially at the expense of countless other pesticides that require state-specific restrictive 24(c) labels.
"This was never a problem until the dicamba situation," she said.
The policy change could force some states not to register federally registered pesticides if they have any local ecological or public health concerns, the New York State Department of Environmental Conservation told DTN in an email.
"In the past, New York State may have used the 24(c) special local needs process to register these [kinds of] products with New York State-specific restrictions," the agency statement said. "Without the option to use more restrictive 24(c) special local need registrations, these pesticides will likely not be approved for registration, making them unavailable for use in the state."
EPA ending states' ability to add their own restrictions to federal dicamba labels is especially frustrating, given that state regulators -- who are responsible for implementing and enforcing federal labels -- had no input in their development, Reed said. As a result, many concerns state regulators have raised about the language, complexity and enforceability of dicamba herbicide labels were left unaddressed once again, he said.
"These dicamba registrations were negotiated solely between the registrants and the EPA," he said. "AAPCO and its committees did offer to review any specific label language for clarity and enforceability; we made that offer to both the agency and the registrants. That hasn't happened."
Going forward, states may find it hard to challenge EPA's new stance on 24(c) in court, despite the long-standing precedent it ends, in part because the move was so unusual, Duer added.
"I think it will be hard to get very clear, precedent-setting cases that will help states try to stick up for their ability to continue to use restrictive 24(c)'s," he said.
Nor are they likely to have the resources to devote to that, especially with state regulators staring down another season of dicamba use, which has eaten up large amounts of state pesticide regulators' budgets and time in past years. In Indiana, for example, the Indiana Office of State Chemist estimates 35% of the state's entire pesticide enforcement budget went to policing dicamba use in 2020, as well as 30% in 2019 and 60% in 2018.
"I don't know if states will be the ones to spend their limited resources in court over this particular issue," Duer said. "They are in a real bind."
Emily Unglesbee can be reached at Emily.email@example.com
Follow her on Twitter @Emily_Unglesbee
(c) Copyright 2020 DTN, LLC. All rights reserved.