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EPA: The States' Worst Secret Santa Ever

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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EPA delivered some answers to state regulators' most pressing dicamba label questions, just in time for Christmas. (DTN illustration by Nick Scalise)

ROCKVILLE, Md. (DTN) -- I'm beginning to believe that someone in the EPA's Office of Pesticide Programs has a real affinity for holidays.

Late on Halloween night, as many of us guided tiny, costumed dinosaurs and witches around darkened streets, collecting candy, EPA dropped a bombshell. They released three new federal dicamba labels, completely un-vetted by the states, and bursting with imprecise language and confusing new requirements. Many farmers, applicators and state regulators were well, a little spooked.

Now, as Christmas approaches, with all its merriment and magic, the EPA seems to have caught the gift-giving spirit. On Dec. 17, the agency delivered answers to 11 of state regulators' most pressing label questions, just in time for some light Christmas Eve reading -- perhaps over a steaming cup of hot buttered rum.

Alas, like many gifts Americans will receive this holiday season, EPA's was rather disappointing.

The agency did clear up some confusion over a few new dicamba use requirements, but remained stubbornly vague on others. And some of their clarifications -- yes, you WILL have to be certified by the state to mix or load dicamba! -- mean a lot of new work and challenges for applicators and regulators this winter.

Though this new guidance from EPA was directed to the Association of American Pesticide Officials (AAPCO), the agency's responses should be required reading for most farmers over the holiday. After all, both growers who spray their own fields and those who rely on commercial applicators will be affected by EPA's new dicamba labels, so knowing how the agency interprets them is increasingly urgent.

And unlike those unwanted Christmas gifts under your tree, EPA's dicamba labels -- and their new guidance on them -- come with no return receipt.

So let's go over the highlights:

1. STATE RESTRICTIONS PERMITTED: YAY OR NAY?

Put this giftie in the disappointing category. State regulators have been trying for the past two months to pin EPA down with a simple yes or no on whether states can issue 24(c) special local needs labels with additional dicamba restrictions.

So, once again, they posed that question to EPA. And once again, the agency dodged it.

"Because of the unique goals states are looking to accomplish in managing the dicamba over-the-top (OTT) registrations, EPA is requesting that states consult with the agency prior to submitting an [24(c)] for the 2019 season," the agency stated, just as it has for the past two months.

2. DO APPLICATORS REALLY HAVE TO BE CERTIFIED JUST TO TOUCH DICAMBA? YES, INDEED.

Here, EPA dropped any coyness and got straight to the point.

"Persons who are not certified applicators may not perform any activities with these dicamba products, including mixing or loading, even if under the supervision of a certified applicator," the agency wrote.

That's a blow for some states, such as Illinois, which will now have to get thousands of pesticide applicators and technicians certified before spring 2019.

In its third response, EPA also clarified that this training is required for anyone using the three dicamba herbicides, XtendiMax, FeXapan and Engenia, at any time of the year, not just over the top of soybeans or cotton. That includes CRP or non-cropland applications, the agency confirmed.

3. HOW FAR FROM A SENSITIVE CROP? NOT VERY.

Once again, the Engenia label does not specify how far applicator have to be upwind from a sensitive crop or residential area before they have to stop applying dicamba. In fact, the EPA seemed to go out of its way to avoid specifying a distance.

The Engenia label states: "The appropriate distance must be determined by the applicator relative to where the application is being made, the environmental conditions, and the potential risk to downwind sensitive crops and residential areas."

Confused and a little overwhelmed at that responsibility? So were private and commercial applicators and state regulators.

"[This] seems very non-specific and vague," state regulators wrote to EPA. "It appears that it provides no real direction or instruction to the applicator, rendering it unenforceable? Can the agency provide additional direction on the intent of this statement?"

EPA responded that the language was intended to be meaningless ... sorry, "advisory."

But don't worry, playgrounds and tomato fields of the country, EPA has your back.

"At a minimum," the agency declared, "certified applicators must not use the product if [downwind] sensitive crops are directly adjacent to the treated field."

4. WORRIED ABOUT ENDANGERED SPECIES? JUST CHECK THE WEBSITE, DARN IT!

EPA and the states have been sparring over the new label requirement for a 57-foot buffer in fields within counties containing certain endangered species. For the past month or two, state regulators have repeatedly asked EPA for guidance on what exact species will prompt this buffer requirement. And EPA has repeatedly told state regulators just to check the website where the counties are listed and not worry about those nitpicky little details.

That advice continued here.

"Growers should refer to Bulletins Live for a listing of Pesticide Use Limitation Areas (PULAs) for endangered species as it relates to dicamba," the agency wrote. "If a county is listed in the Bulletins Live system, growers in that county must follow the restrictions on the bulletin."

5. ARE SOME LABEL SECTIONS STILL PURPOSELY VAGUE AND UN-ENFORCEABLE? YUP.

No, that wasn't the actual question, but EPA's responses to four of the state regulators' label questions pretty much confirmed it.

All three labels tell applicators not to apply these products to sandy soils with less than 3% organic matter and shallow groundwater depth.

State regulators asked what "shallow" meant. The agency responded that it didn't really know, either: "EPA intended this label statement to be advisory for states to apply their judgement in training certified applicators and providing oversight on this label section."

In another section, the Engenia label states, in aggressive bold, all-caps print, "DO NOT rely on a single herbicide mode of action ..." You can almost hear the weariness in the state regulators' question: "We assume the DO NOT is for effect and not enforceable, correct?"

"Correct," EPA responded.

State regulators also tried to determine if spraying into a temperature inversion qualifies under the labels' admonition not to let the dicamba herbicides "physically drift" onto desirable vegetation.

The agency asked for a rain date: "EPA is looking forward to further discussing this issue and coordinating with the states."

And finally, state regulators asked EPA how field inspectors can possibly confirm whether a dicamba application was made before R1 or 45 days after planting, when most inspections occur many weeks after a spray application.

EPA's response? "Planting and application dates are items that are subject to mandatory reporting protocol."

Could applicators and farmers ever falsify or misrepresent those dates? Well sure, but that's not EPA's problem.

Merry Christmas, applicators and state regulators!

Love, the EPA.

See the full Q&A at AAPCO's website here: https://aapco.org/…

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

Follow her on Twitter @Emily_Unglesbee

(PS/GH/ES)

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