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EPA Defends Pesticide Rules

Congress raises a fuss about costs of environmental regulations on agriculture

by Britt E. Erickson
March 28, 2011 | A version of this story appeared in Volume 89, Issue 13

Credit: Keith Weller/USDA
EPA says it will not propose a zero-tolerance policy for pesticide spray drift, which can be reduced by using cross-flow fans as seen here.
Credit: Keith Weller/USDA
EPA says it will not propose a zero-tolerance policy for pesticide spray drift, which can be reduced by using cross-flow fans as seen here.

Members of Congress in both the House of Representatives and the Senate are in an uproar about the impact of environmental regulations on agriculture. Republicans and Democrats alike say the Environmental Protection Agency’s inconsistent, burdensome, and overreaching regulations are increasing agricultural costs and putting American farmers out of business.

During a long and contentious hearing on March 10, more than two dozen members of the House Agriculture Committee bombarded EPA Administrator Lisa P. Jackson, the sole witness, with a laundry list of grievances from the agricultural community. Many of the complaints involved pesticide and chemical regulations.

Lawmakers are particularly worried about a quickly approaching court-ordered deadline for pesticide applicators to obtain costly permits under the Clean Water Act (CWA) when spraying in or near U.S. waters. Such permits are duplicative, several committee members said, because the environmental effects of pesticide applications are already considered under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA).

Other EPA actions that riled members of the committee at the hearing include the agency’s unscheduled review of the widely used herbicide atrazine, a proposal to ban residues of the fumigant sul­furyl fluoride on food, a miscommunicated policy on pesticide spray drift, the denial of an emergency exemption for the pesticide propoxur to eliminate bedbugs, and a review of particulate matter that could lead to tighter controls on airborne dust.

“Farmers and ranchers believe your agency is attacking them,” Committee Chairman Frank D. Lucas (R-Okla.) said to Jackson. “The committee will look at every proposed rule from your agency and ask essentially three very basic questions: Is EPA following the law, are you making regulatory decisions based on sound science and data, and are you conducting adequate cost-benefit analysis?” he said.

Similarly, ranking member Collin C. Peterson (D-Minn.) told Jackson that farmers see EPA as “an out-of-control agency that doesn’t understand agriculture.” The problem, he said, is that EPA keeps changing policy as a result of lawsuit settlements.

“We’ve watched organizations use the courts to twist laws against American farmers and agricultural production,” Peterson said. “More and more we are seeing important policy decisions that impact agriculture rise not out of the legislative process, but from the litigation process, where court decisions or secret lawsuit settlement negotiations result in poor public policy decisions.”

Peterson urged EPA to develop policies in an open, transparent manner. “Unfortunately, this sue-and-settle strategy keeps the process in the dark,” he stressed. The committee asked Jackson to provide copies of all settlements that EPA had negotiated under her leadership.

Throughout the hearing, Jackson defended EPA’s regulations and dispelled what she called myths circulating around the agricultural community. “These mischaracterizations are more than simple distractions. They prevent real dialogue to address our greatest problems,” Jackson said.

Jackson provided several examples of such distractions, including the belief among farmers that EPA is planning to regulate spilled milk the same way it regulates spilled oil and that EPA will control greenhouse gas emissions from cows. Neither one is true, Jackson said. She also reassured lawmakers that EPA has no plans at this time to strengthen controls on particulate matter, including dust, in air.

With respect to pesticides, Jackson clarified that EPA has not proposed a zero-tolerance policy for spray drift, contrary to what many people think. “While no one supports pesticides wafting into our schools and communities, EPA does not support a no-spray-drift policy,” Jackson noted. “EPA has been on the record numerous times saying this, but the incorrect belief that EPA desires to regulate all spray drift persists,” she said.

Jackson also defended EPA’s handling of bedbugs. Rep. Jean Schmidt (R-Ohio) asked why EPA denied an emergency exemption for the pesticide propoxur to eliminate bedbug infestations (C&EN, March 7, page 13). Jackson replied that EPA was not able to show that propoxur was safe because of its potential health effects in children.

Numerous lawmakers were also troubled by EPA’s 2009 decision to reevaluate the human health and environmental effects of atrazine. EPA determined in 2003 that the herbicide was safe.

When asked by Rep. Jim Costa (D-Calif.) why EPA decided in 2009 to launch another review of atrazine, Jackson responded that there have been more than 150 studies since 2003 on the health and environmental effects of atrazine in drinking water. Some of those studies link atrazine to birth defects, premature births, and low birth weight in humans. “Rather than have that data sit there and scare people, we decided to do a scientific review,” Jackson said.

Costa moved beyond atrazine and also raised concerns about EPA’s handling of soil fumigants. He criticized EPA for restricting the use of fumigants that are widely used in other countries and urged the agency to do a better job of finding alternatives to the fumigants it bans.

Fumigants were also on the mind of Rep. Dennis A. Cardoza (D-Calif.). In particular, Cardoza questioned EPA’s proposal to phase out residues of sulfuryl fluoride on food (C&EN, Jan. 17, page 8). “This move is puzzling to me because it will negatively impact public health by increasing the potential for contamination and diminish producers’ ability to export goods to foreign markets,” Cardoza said.

Sulfuryl fluoride is used as a fumigant on stored grains, dried fruit, nuts, and cocoa beans. EPA acknowledges that residues of the pesticide contribute only a tiny amount to a person’s total exposure to fluoride.

Nonetheless, EPA’s Office of Pesticide Programs has found that the tolerance for sulfuryl fluoride in food does not meet the federal food safety standard for children because children are already overexposed to fluoride from drinking water, Jackson testified. “Those tolerances became an issue because we were sued,” she said.

“Congress has imposed a vast array of requirements on EPA, and we are frequently sued by environmental and other organizations,” Jackson testified. In many cases, she said, the remedy to the lawsuit is to undertake rule-making.

In some cases, that rule-making is “something that we can live with,” Jackson noted. But in others, the costs of the requirements are far greater than the benefits.

The 2009 ruling that set the need for duplicative pesticide water permits is a prime example of a court decision that will cost the agricultural community millions of dollars with little benefit to the environment, lawmakers noted at the hearing.

That court ruling overturned a 2006 EPA rule that excluded pesticides that comply with FIFRA from being considered pollutants under CWA. The court gave EPA two years to develop the new permit.

Those two years are just about up, and unless Congress acts or EPA resolves the matter through regulation, pesticide applicators will need to obtain water discharge permits beginning on April 9.

EPA, however, has yet to finalize the permit. The agency asked the court earlier this month for an extension until Oct. 31 so that it could get additional advice on how to evaluate the effects of pesticides on endangered species. When C&EN went to press, the court had not yet ruled on this request.

Meanwhile, members of the House have been working to quickly overturn the ruling. Legislation (H.R. 872) that eliminates the duplicative permit requirement sailed through both the House Agriculture Committee and House Transportation & Infrastructure Committee earlier this month. The bill is expected to pass the full House before the April 9 deadline.

“Without congressional action, this misguided ruling would be a crushing blow to an already fragile economy,” Chairman Lucas stated when the Agriculture Committee passed the bill. “It would unleash a blitz of regulatory burdens on our farmers and ranchers, starting with requiring an extra permit for pesticide applications, thousands of dollars in fines for noncompliance, and an increased risk of lawsuits down the road,” he said.

EPA estimates that 365,000 applicators and 5.6 million pesticide applications would be subject to the new water permit requirement, costing at least $50 million for applicator compliance and $2 million for EPA administration each year, according to Lucas.

It is unclear whether similar legislation will be introduced in the Senate. Members of the Senate Agriculture, Nutrition & Forestry Committee met with EPA Administrator Jackson and Department of Agriculture Secretary Tom Vilsack behind closed doors on March 8 to discuss the duplicative permit situation and other regulatory impacts on agriculture.

The meeting “was an opportunity for senators to share our concerns about regulations on America’s farmers, ranchers, and foresters,” Sen. Debbie Stabenow (D-Mich.), chairwoman of the committee, said in a statement. The discussions between the committee, Jackson, and Vilsack “will continue through a working group to find common ground,” Stabenow said.

Sen. Pat Roberts (R-Kan.), ranking member of the committee, had been working with Sen. Saxby Chambliss (R-Ga.) on a bill to eliminate the water permit requirement. But the senators emerged from the March  8 meeting confident that EPA can resolve the problem through rule-making, without needing Congress to get involved.

The duplicative pesticide permit problem is one of the few challenges facing agriculture that lawmakers and EPA actually agree needs to be resolved. EPA has acknowledged that the additional permits will provide little benefit to the environment. Other requirements confronting the agriculture industry, however, are much more controversial, and consensus will likely be more difficult to reach.


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