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Minnesota Weakens Federal Pesticide Laws; Court Rules In Favor
(Beyond Pesticides, March 4, 2004)
On February, 14 the Minnesota Court of Appeals made a ruling based on the state’s interpretation of the “Bee Caution” portion of a pesticide label that plaintiffs claim is inconsistent with and in violation of the U.S. Environmental Protection Agency’s (EPA) interpretation and intention of the label.

Judge Hudson of the Minnesota Court ruled in favor of International Paper Co. (IP) and The Minnesota Department of Natural Resources Forestry Division (DNR) who used or advised to use Sevin XLR Plus Carbaryl, a carbamate nerve toxin pesticide highly toxic all living things including bees. DNR advised IP to use the highly controversial pesticide, considered to be one of the most toxic and hazardous on the market, even though the agency also identified the much less toxic Bascillus Thuringiensis (BT) as a viable alternative for the cottonwood leaf beetles plaguing IP’s poplar plantations.

Precisely around the same time that IP began using the Carbaryl insecticide Sevin XLR Plus manufactured by Bayer CropSciences, neighboring beekeepers began to notice in 1998 that many of their young bees and broods were dying. Beekeepers nationwide are reporting an alarming decline in the pollinator population.

One of the primary contentions in the case is over the interpretation of the “Bee Caution” portion of the insecticide’s label that reads, “This product is highly toxic to bees exposed to direct treatment or residues on blooming crops or weeds---Do not apply this product or allow it to drift to blooming crops or weeds if bees are foraging in the treatment area.”

Judge Hanson ruled against the beekeepers and based his opinion almost solely on the interpretation of the “Bee Caution” portion of the pesticide label as provided by Paul Liemandt, director of the Minnesota Department of Agriculture Pesticide Enforcement Section (MDA). Liemandt states that, "…in order to be in violation of the label and in violation of the law, an applicator would need to spray Sevin XLR Plus at a time where there were a significant number of bees actively foraging in the treatment site….”

Jeffrey Anderson, the lead plaintiff in the case, argues that Liemandt’s interpretation of the label runs counter to an EPA manual for label interpretation and that such an interpretation is “gutting portions of insecticide labels and weakening protection for pollinators protected by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)” under the EPA. “MDA deleted the word residues, and made no attempt to clarify what constituted significant numbers of either plants or bees. Further, in their investigations MDA never looked for foraging bees on the blooming plants,” says Anderson.

“…The EPA manual requires that, for Class One pesticides with Extended Residual Toxicity (ERT), the label prohibits spraying if bees are ‘visiting’ the spray areas. But for less toxic non-ERT pesticides, the label prohibits spraying if the bees are ‘actively visiting’ the spray area,” reads a legal brief of the case. The plaintiffs “argue that Sevin is an ERT pesticide and that ‘visiting,’ rather than ‘actively visiting,’ is synonymous with ‘foraging.’” Thus, appellants contend that unlike the term ‘actively visiting,’ the terms ‘visiting’ and ‘foraging’ do not require that a significant number of bees are present during or shortly after the spraying of Sevin for a violation of the Sevin label.

“Liemandt added two very subjective words in his interpretation – significant and actively,” says Steve Ellis, another plaintiff in the case. Ellis also points out that starting in April of this Year, Mr. Liemandt will be the President of the American Association of Pesticide Control Officers (AAPCO) and that in 2000, AAPCO lobbied heavily with EPA to get bee caution label changes to include the exact wording “significant number of actively foraging bees” and “significant amount of blooming plants.”

Among the reasons the Judge used to rule against the beekeepers cited in the legal brief were that “…the EPA manual that appellants rely on uses the terms ‘visiting’ and ‘actively visiting’ and the Sevin label uses the term ‘foraging’,” and “…during his consultation with the EPA, the MDA investigator was specifically told that ‘foraging’ meant ‘actively visiting’ not ‘visiting.’”

Although aware of the situation, the EPA has not yet made a public statement on the case. “The EPA is standing by, unwilling to step to the plate and enforce federal law,” says Anderson.

“We need to get the word to U.S. EPA that FIFRA and environmental cautions on labels need to be enforced to protect as they were intended,” says Steve Ellis. “EPA needs to review actions by state agencies such as MDA to determine if indeed they are doing their job or as in the case of Minnesota, not doing their job.”

Pollination, or the transfer of pollen grains to fertilize the ovaries of flowers, plays an essential role in both the production of agriculture (particularly all fruit and grain crops) and the existence of a healthy ecosystem. There are over 100,000 invertebrate species — such as bees, moths, butterflies, beetles, and flies — that serve as pollinators worldwide. Recent declines in bee populations throughout North America have led to critical shortages and lost crops, which most believe is a direct result of pesticides use. The pollinators industry, estimated to be around $40 billion per year, has been fighting a similar court battle with the chemical industry and EPA on the use imidacloprid (see also Daily News story).

For more information and background on this case, see the story by Dan Gunderson on Minnesota Public Radio (click here if link not available) or email Jeff Anderson of Cal Minn Honey Farms.

TAKE ACTION: If you are concerned about the ruling of this recent court case, the protection of pollinators under FIFRA, the continued unnecessary use of Carbaryl, or about EPA’s failure to enforce FIFRA label laws (which provide the bare minimum of protection), please contact Mr. Tony Britten of the EPA’s Office Of Prevention, Pesticides And Toxic Substances by email or phone: 703-308-8179 and Mr. Michael Leavitt, EPA Administrator, by email, phone: 202-564-4711 or fax: 202-501-1470.