From chlorpyrifos to dicamba, growers can’t help being confused by recent rulings.
⋅ BY AMANDA HUBER ⋅
That courts now complicate pesticide registration and application is something growers should get used to, say University of Georgia Extension specialists. Both peanuts and cotton are dealing with chemicals being revoked, then back, then re-revoked, making the situation “clear as mud,” as the saying goes. UGA Extension peanut entomologist Mark Abney has spent the winter and early spring meetings figuring out where the legal boundaries are on chlorpyrifos and explaining it to producers.
“When the U.S. Environmental Protection Agency made their decision on chlorpyrifos, they didn’t cancel the label. Instead, they revoked the tolerance for residue,” he says. “Tolerance is the amount of product residue that can be on the crop legally when it is sold. You have a certain tolerance in parts per billion of active ingredient. If you’re under that level, you’re fine. If you’re over that level, you’ve exceeded the tolerance of that crop and it is considered ‘adulterated,’ the EPA’s word, and the product can’t be sold.
“Every chemical, additive, pesticide, etc., has a residue tolerance. The tests that establish these tolerance levels happen during the registration process by the company with the EPA checking to make sure the way we use products does not leave an amount of residue that is harmful to our health.”
When the EPA revoked the tolerances on chlorpyrifos, Abney says there was still a legal label, but with zero tolerance, the product could not be used in peanuts or any other crop.
The Latest Ruling
Revoking of tolerances occurred because of a court case and a ruling that was made in the 9th circuit court in San Francisco, who told the EPA to either revoke all tolerances or review all chlorpyrifos use patterns to see if any use patterns could be deemed “safe.”
Abney says the EPA chose to revoke all tolerances, but the fact that they had options becomes important in the next ruling.
In another lawsuit that had made its way to the 8th circuit court in New Orleans, a judge in this ruling said that the EPA did not give any consideration to the other option and instead chose the easy, quick route of revoking tolerances.
Abney says, “In the judge’s ruling, he said, essentially, ‘Just because something is hard doesn’t mean you shouldn’t do it.’ The judge said the EPA’s choice to revoke tolerances was ‘arbitrary’ and ‘capricious,’ and he threw it out.”
That means as of his ruling in late December 2023, all food-use tolerances that were in place when revoked were restored. However, the EPA eventually said they would move to re-revoke all tolerances at the end of 2024.
Check Your Contract For Pesticide Use Restrictions
Unfortunately, Abney says that not everyone who may need chlorpyrifos will probably be able to get it this one last season.
“What’s in warehouses now and left over from a few years ago is what we’ve got to use this season,” Abney says. “My guess is that everyone who would need and want to use chlorpyrifos will not be able to get it.”
Abney says some companies voluntarily surrendered their product labels, which would make use of those products illegal. Also, chlorpyrifos liquid cannot be used on peanuts that have emerged, only granular chlorpyrifos.
Additionally, because peanuts are exported and other countries often have different acceptable tolerance levels, some buyers will stipulate pesticides that cannot be used.
“Although we may say you can use a certain product, you need to check your contract,” Abney says. “Your contract with your buyer may include products that you cannot use in your crop.”
“This is what happened with propiconazole,” says UGA Extension peanut specialist Scott Monfort. “Buyers said they would not buy peanuts where growers had used propiconazole because it could not be sold on the export market. This essentially meant growers could not use it.”
Abney says, “We don’t see your contract with your buyer. I can only tell you what the federal government says is legal to use. If you are a peanut grower and you get your hands on granular chlorpyrifos, it is legal to use it in 2024. Check your contract and make sure you don’t have a clause that says you can’t use it.
“If you don’t really need it,” he says, “then don’t buy it. Leave it for those folks who need it for insect management.”
Going Forward
In the future, it is likely producers can only expect more of this type of back and forth through the courts, causing confusion and frustration. But growers are not the only ones.
“For those of us who work in areas that involve the use of pesticides, this is the world we live in now,” says UGA weed scientist Eric Prostko. “Courts are involved in registration processes and environmental or activist nongovernmental organizations, or NGOs, have figured out they can sue the EPA to get what they want, which is no pesticide use whatsoever. That’s what is happening now.”
Brigit Rollins, staff attorney at the National Agricultural Law Center, says recent litigation has spurred significant changes in pesticide regulation, including vacating the registration for widely used pesticides and shifts in EPA enforcement philosophy.
“Over the past few years, we’ve seen dicamba become unavailable for use more than once as the direct result of lawsuits and subsequent court decisions,” she says. “Going forward, we’re expecting to see additional restrictions on pesticide use as the EPA works to come into better compliance with the Endangered Species Act.”
Rollins, along with Rod Snyder, senior advisor for agriculture to the U.S. EPA administrator, will be featured speakers at the 11th Annual Mid-South Agricultural & Environmental Law Conference June 6-7, 2024, in Memphis, Tennessee, during the session entitled, “Tomorrow’s Harvest: An Overview of the Regulatory and Litigation Landscape for Crop Protection Products.” Read more about this conference in the April issue of Cotton Farming magazine.
Rollins says the EPA’s shift toward a closer alignment with the Endangered Species Act will mean increased restrictions for applicators. “With changes to pesticide labels coming in rapidly, and sometimes unexpectedly for producers, staying informed is critical.”
Unfortunately, it isn’t easy to keep up with these changes. PG
