Backlash Over Increasing EPA Authority Heats Up

Senate hearing addresses impact of EPA regulations on agriculture.

In a recent Farm Futures survey, we asked farmers if the government is making it easier to farm today than it was 20 years ago. A total of 86% disagreed or strongly disagreed with the statement.

Not much of a surprise considering that farmers as facing at least 10 new regulatory requirements. Sen. Saxby Chambliss, R-Ga., said the number is as high as 20. Each will add to the cost of doing business for farmers, making it more difficult to compete. "And most, if not all of these regulations rely on dubious rationales and, as a consequence, will be of questionable benefit to the goal of conservation and environmental protection."

The words were shared by Senate Agriculture Committee Chairwoman Blanche Lincoln, D-Ark., at a recent hearing entitled "Oversight Hearing to Examine the Impact of EPA Regulation on Agriculture." Loaded hearing, huh?

Some words out of Lincoln's mouth during her opening statement very well may have come out of producers' own mouths.

“Farmers and ranchers do not have an army of environmental engineers, lawyers, and regulatory compliance specialists on their speed-dial. Compliance obligations that may seem simple to a career bureaucrat in Washington, DC are often complex, ambiguous, and, in the end, leave farmers and ranchers feeling tremendously uncertain and exposed to steep fines they simply cannot afford," she said.

Spray drift

Lincoln said EPA’s recent proposed spray drift guidance, as she indicated in a letter to the Administrator, was "vague, unenforceable and would have left producers uncertain about whether they were complying with the law when they spray." She was initially informed that EPA decided to reconsider the proposed spray drift guidance, though more recently she said she has heard that EPA plans to stick with its initial proposal.

 Jay Vroom, president of CropLife America, testified that in late 2009 EPA proposed new spray drift policy--that would result in new label language on the order of: “Do not apply this product in a manner that results in spray [or dust] drift that could cause an adverse effect to people or any other non-target organism.” This precautionary-based proposal would have effectively replaced the FIFRA risk-benefit standard with a new zero-risk standard.

Vroom explained that EPA and state pesticide policies have long acknowledged that small amounts of pesticide drift are unavoidable and, when used according to the product’s label, does not pose ‘unreasonable adverse effects’(the risk standard in FIFRA) to humans or the environment. EPA’s risk assessment and registration process include spray drift considerations, and label requirements include drift reduction management considerations.

"Despite these protections, anti-pesticide litigation and activists’ policy pressures are pushing EPA and the states to consider zero-drift policies. And, in response, some state pesticide enforcement officials have indicated a need for more clear guidance on enforcement as relates to spray drift," Vroom said.

"CropLife America believes that EPA’s proposed changes to labels are based on an unreasonable and unattainable new standard of no drift. Potential spray drift effects are already taken into account in EPA’s risk assessment and assignment of registration restrictions and product label language," he added.

Pesticide labeling

Another hot item on the hearing agenda was EPA’s development of Clean Water Act permit requirements for pesticide applications. Lincoln said what is most frustrating to her about this development is that the pesticide applications will be unnecessarily regulated twice – once under FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act) and again under the Clean Water Act. "I firmly believe that as long as a FIFRA-registered product is applied in accordance with its label and any other conditions, then we shouldn’t be requiring unnecessary, duplicative regulatory burdens, she said.

Lincoln and Chambliss introduced S.3735, a bill that would clarify that a Clean Water Act permit is not required if a pesticide is applied in accordance with FIFRA. Lincoln said she hopes they we can find a way to pass this legislation as soon as possible. House Agriculture Committee Chairman Collin Peterson also introduced H.R. 6273, companion legislation in the House.

Vroom noted that the permit will add performance, recordkeeping and reporting requirements to an estimated 1.5 million pesticide applications per year, and preempt the science-based ecological review of pesticides and label requirements for uses regulated under the FIFRA.

"New requirements for monitoring and surveillance, planning, recordkeeping, reporting and other tasks will create significant delays, costs, reporting burdens and legal risks from citizen suits for hundreds of thousands of newly-minted permit holders without enhancing the environmental protections already provided by FIFRA compliance. We have one example from an aquatic weed management company treating a marina in Washington State, showing a $1,500.00 permit is required to apply $350.00 worth of pesticides," Vroom testified.

To date, EPA’s proposed general permit only covers applications of pesticides registered for aquatic use and applied to water or forest canopies into or over flowing or seasonal waters, and conveyances to those waters; it would not cover pesticide applications registered and intended for terrestrial use. However, activists indicate that they believe most pesticide applications should require a permit if there is even a chance that the pesticide could come in contact with any “water,” either flowing water or seasonal drainage ditches that could be a conveyance to a water of the US. So, even though EPA may not currently cover farmland and rangeland pesticide applications, nothing in the CWA or the proposed permit protects against citizen suits against farmers for not obtaining a permit. This establishes an uncertain, increased level of liability for farmers and ranchers, as well as users applying pesticides to golf courses and public utility rights of way, and private homes and businesses, Vroom said.

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