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Daily News Blog

05
Mar

EPA and Court Allow Violations and Hazards of Weed Killer Dicamba Under Existing Stock Order

Buried in a court decision in February continues a pattern of “existing stock” allowances that permit hazards to continue well after a finding of harm.

(Beyond Pesticides, March 5, 2024) Buried in a court decision in February that determined that the U.S. Environmental Protection Agency (EPA) violated the law in allowing harm associated with the herbicide dicamba’s registration is language that permits the damages to continue through this year’s growing season. The judge’s ruling, deferring to EPA’s interpretation of the existing stock provision in the federal pesticide law, continues a pattern of “existing stock” allowances that permit hazards to continue well after a finding of harm or noncompliance. This process contrasts with the issuance of a product recall, which is typically done when pharmaceuticals are found to violate safety standards.

Despite the finding of dicamba’s harm and EPA’s failure to comply with standards, the continued use of the weed killer through the 2024 growing season is effectively authorized in a decision of the U.S. District Court of Arizona, which vacates the EPA’s 2021 authorization of the use of three over-the-top (OTT) uses of dicamba-based herbicide products. In response, EPA issued an existing stocks order.

EPA’s pattern of allowing the use of existing stocks has long been a concern for public health and environmental advocates, who have called for the discontinuance of use upon findings of elevated risk factors or illegal uses that do not comply with statutory standards. After EPA determined in 1999 that the toxic insecticide, chlorpyrifos, is highly neurotoxic to children, EPA announced in June 2000 an agreement it had reached with Dow AgroSciences that phased out most home uses, but permitted sales to continue through 2001 so that all existing stocks could be sold off. During the existing stock sell-off of chlorpyrifos labeled for home use, no warning was provided to the public and retailers offered discounts to help clear their shelves. Beyond Pesticides in the late 1980s (then the National Coalition Against the Misuse of Pesticides/NCAMP) sued EPA (see The Washington Post and The New York Times) when the agency negotiated an agreement with Velsicol to phase out the use of the insecticide chlordane and allow all existing stocks to be used up. Then the issue was cancer, and the judge in the case found that the additional cancers that would be caused by leaving the chemical in commerce for the phaseout period, including the cost to cancer victims, were unacceptable. On a regulatory level, the judge also found that EPA’s failure to evaluate the harm caused during the phase-out period was a violation of the agency’s responsibility under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The District Court’s finding was reversed on appeal, but by then, EPA had negotiated a shortened phaseout period and established a recall/buyback program, something the agency rarely does. For a history lesson on the failure of FIFRA, see National Coalition Against the Misuse of Pesticides, et al., Appellees, v. Environmental Protection Agency, et al., Appellants, 867 F.2d 636 (D.C. Cir. 1989).

The current situation with the continued use of dicamba under the existing stock allowance is described by EPA’s Office of Chemical Safety and Pollution Prevention: “This Existing Stocks Order is limited in time and scope, allowing for certain sale, distribution, and use of existing stocks of these formerly-registered dicamba products for the 2024 growing season… EPA has received ample evidence that millions of gallons of OTT dicamba had already entered the channels of trade prior to February 6, 2024. Additionally, most growers have already placed orders for dicamba-tolerant seed for the 2024 growing season and, given the timing of these registrations being vacated, are not able to pivot to another herbicide-tolerant seed and herbicide system.”

A report by AgWeek outlines how the existing stocks order will impact farmers differently depending on the state. “The products can be sold and used by different dates depending on the state, as follows:

  • Iowa, Illinois and Indiana: Sales through May 13; use through June 12 or V4 growth stage in soybeans or first square growth stage in cotton, whichever comes first.
  • Minnesota: Sales south of Interstate 94 through May 13 and north of I-94 through May 31; use south of I-94 through June 12 and use north of I-94 through June 30.
  • South Dakota: Sales through May 21; use through June 20.
  • Alabama, Arizona, Arkansas, Colorado, Delaware, Florida (excluding Palm Beach County), Georgia, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Caroline, Tennessee (excluding Wilson County), Texas, Virginia, West Virginia and Wisconsin: Sales for soybeans through May 31 and sales for cotton through June 30; use on soybeans through June 30 and use on cotton through July 30.”

As Beyond Pesticides has mentioned in a previous Daily News, “Dicamba and other types of herbicide have proven to pose stark adverse health risks to farmworkers and ecosystems. . . For example, there is a strong association between dicamba use and an increased risk of developing various cancers, including liver and intrahepatic bile duct cancer, chronic lymphocytic leukemia, and acute myeloid leukemia. In the Gateway on Pesticide Hazards and Safe Pest Management entry for Dicamba, there is a slew of medical studies detailing adverse health and environmental effects, including neurotoxicity, kidney/liver damage, sensitization/irritation, birth/developmental defects, reproductive damage, and respiratory illnesses. Dicamba has also been proven to have adverse health impacts on wildlife habitats, including the spraying of approximately 1,328 pounds in the National Wildlife Refuge in 2016 alone, impacting bird populations and pollinator species in particular. Dicamba is a poster child of a failed regulatory system that creates ecosystem imbalances by attempting to correct them, considering that the herbicidal drift of this herbicide has proven to lead to antibiotic resistance after testing sublethal traces on bacteria.”

The District of Arizona, in its ruling, provides leeway for the EPA to employ its powers pursuant to the FIFRA: “The Court notes that in response to vacatur of the 2016, as amended in 2018, OTT dicamba registrations, the EPA cancelled the registrations but allowed use of existing stock. Vacating the registrations poses no greater risk to the environment than leaving it in place because other similar herbicide options are available to replace it in the interim. Threats of noncompliance or that growers will use more dangerous non-OTT dicamba products if these registrations are vacated are weakened by concerns reflected in the 2021 Report that such noncompliance already occurs.” Indeed, Section 6 of FIFRA states, “The [EPA] Administrator may permit the continued sale and use of existing stocks of a pesticide whose registration is suspended or cancelled under this section or section 136a [ ]11, to such extent, under such conditions, and for such uses as the Administrator determines that such sale or use is not inconsistent with the purposes of this subchapter.” [7 U.S.C. § 136d(a)(1)]

As advocates witnessed with dimethyl tetrachloroterephthalate (DCPA), chlordane, methyl iodide, and chlorpyrifos, the use of existing stocks orders enables the continued use of toxic pesticides that the EPA has acknowledged are dangerous to farmworkers, farmers, ecosystems, wildlife, and the general public. Some of these existing stocks orders fail to include a sunset date in which these products are permanently phased out of both production and use.

The routine use of existing stock orders serve as an example of EPA’s commitment to facilitating access to toxic pesticides even after the unacceptable hazards and potential damage associated with their use has been determined. Advocates have challenged the continued marketing of pesticides after EPA has determined that risk criteria are exceeded and without any notice to the public and users. Beyond Pesticides takes the position that these hazards are not “reasonable” under FIFRA, given the availability and profitability of USDA certified organic practices that eliminate the need for toxic petrochemical pesticides like dicamba and chlorpyrifos. In collaboration with our partners, Natural Grocers, Stonyfield Organic, and other supporters, Beyond Pesticides has successfully trained parks and land managers for higher education institutions, cities, and municipalities to adopt organic principles as models for state and federal policy. Learn more by viewing Parks for a Sustainable Future.

All unattributed positions and opinions in this piece of those of Beyond Pesticides.

Sources: AgWeek, EPA

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