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September 23, 2011

State FIFRA Issues Research & Evaluation Group Meeting

Bergeson & Campbell, P.C.

On September 19-20, 2011, the Pesticide Operations Management (POM) Working Committee (WC) of the State Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Issues Research & Evaluation Group (SFIREG) met in U.S. Environmental Protection Agency (EPA) offices in Arlington, Virginia. Through a cooperative agreement in 1978, EPA and the Association of American Pesticide Control Officials (AAPCO) created SFIREG, an AAPCO committee with EPA funding, to promote information exchange and cooperation between the states and EPA in the development of pesticide policies and regulations. More information about SFIREG is available online. A copy of the meeting handouts is available upon request contacting Chad Howlin.

Issues of potential interest discussed during the meeting included the following, each of which is discussed below:

Drift Labeling and AAPCO

SFIREG had developed and forwarded comments to EPA concerning the pending Pesticide Registration Notice (PRN) regarding pesticide drift label language. (A written summary of the SFIREG comments was provided at the meeting.) The comments reflect the concerns expressed to SFIREG by State Lead Agencies (SLA) representatives.

Jill Bloom, EPA Pesticide Re-evaluation Division (PRD), stated in response that EPA did not intend a zero drift standard and providing more detailed guidance concerning harm is difficult because EPA cannot account for every fact pattern.

During discussion, the POM WC members agreed that this is a difficult issue with which all stakeholders have struggled for a long time, and that while not completely satisfied with proposed revised language, it is “the best we can do” and “as good as it is going to get.” Both Bloom and POM WC members discussed that states would not be precluded from implementing requirements more restrictive than the label language.

Fumigation Label Workgroup

John Leahy, EPA PRD, and Doug Edwards, Virginia Department of Agriculture & Consumer Services, provided the POM WC with an update on the status of label revisions and risk mitigation measures for soil fumigants. Rick Keigwin, EPA Director, PRD, later stated that he hoped to have the federal label review completed by the end of calendar year 2011. Once the labels are complete, Leahy stated that EPA would be updating resources in its online Soil Fumigant Toolbox to reflect the Phase 2 changes. Leahy also stated that EPA review of applicator training materials, community outreach, and first responder communication tools is well underway.

SCBA Requirements on Fumigation Labels

Pat Jones, North Carolina Department of Agriculture, led a discussion about the POM WC’s concern about the requirement for farmers and applicators to have Self-contained Breathing Apparatus (SCBA) on site and ready for use in case of an emergency. The POM WC had prepared an Issue Paper discussing its reservations about this requirement, which it voted during the meeting to issue in final and forward it to the full SFIREG and EPA. Keigwin stated that EPA likely will accept the POM WC’s recommendation.

Web Distributed Labels

Michelle Arling, EPA Field and External Affairs Division (FEAD), first provided an overview of the several-year evolution of the web-distributed label initiative. Arling stated that at this point, EPA plans to propose a program that is voluntary and not applicable to consumer products. Bill Jordan, Senior Policy Advisor, EPA Office of Pesticide Programs (OPP) Office of the Director, stated that OPP plans to publish a draft PRN for review and comment in late 2011. Among the web-distributed label program features will be: search capacity for use directions by state and crop; complete labels still will be required on product containers; both product container and web-distributed labels will be dated; users may rely on web-distributed labels if the date is later than the one on the product container; and users may choose to rely on either the container or web-distributed label but must choose one and adhere to all the use directions and restrictions on the selected label.

OPP Distributor Label Product Name Initiative

Meredith Laws, EPA Registration Division (RD), stated OPP is engaged in an ongoing review of distributor product names because, according to Laws, OPP had been concerned about distributor product names that the registration divisions would not approve for primary registered products. Laws stated that OPP is focusing only on product names because EPA does not review distributor product labels. According to Laws, EPA rejects distributor product names and notifies primary registrants for only 1 to 2 percent of distributor product notices submitted, a high percentage of which are for antimicrobial products. Laws stated that registrants are given a chance to modify or caveat the product name to make it acceptable; Laws also stated that “green” is not permitted in a product name unless it is for an algaecide or the product contains a fertilizer.

High Yield Enforcement Actions

Don Lott, EPA Office of Enforcement and Compliance Assurance (OECA), stated that with continued budget cuts at the federal and state level, OECA has reconsidered how to approach enforcement. As described by Lott, in addition to protecting human health and the environment, the intended focus on “High Yield Enforcement Actions” appears to be two-fold: increasing penalty-generated revenues and generating metrics that can be used as a basis for arguing against further budget cuts. Lott expressed the need for EPA Regions and states to be more efficient in enforcement actions. One way to do this, Lott stated, is once a state/EPA Region has found a non-compliance event, it/they should consider whether the nature of the non-compliance is more likely site-specific or instead suggestive of a potential issue with corporate-wide compliance behavior. Lott stated that EPA will encourage the states and Regions to prioritize the latter violations and coordinate investigations on a national level based on suspected non-compliant behavior on a company-wide basis.

OECA Supplemental Distributor Labels Enforcement Initiative

Referring to Laws’ earlier presentation, David Stangel, OECA, stated that OECA plans to place additional enforcement focus on distributor labels beginning in 2012. Stangel stated that when OECA developed the 2012 National Program Managers Guidance, it made distributor labels enforcement one of two mandatory focus areas. (The other mandatory area is imported pesticides.) EPA Regions must plan their enforcement efforts by focusing on the two mandatory focus areas and then picking at least one of four other focus areas in the National Program Managers Guidance; according to Stangel, the other four areas for 2012 are: containers and containment; fumigation and fumigants; retail sale; and worker safety. Stangel stated that the 2012 National Program Managers Guidance is effective October 1, 2011.

Regarding distributor product labels, Stangel stated that there has been wide spread concern at the federal and state level of what Stangel described as “rampant noncompliance” by distributor products. Stangel stated that this initiative will target compliance with all distributor product-related requirements, including: proper labeling; if the supplemental registrant also produces the distributor product, whether the appropriate contract vehicles exist to permit this production; and whether the supplemental registrant sources raw materials from the sources listed on the registered product’s Confidential Statement of Formula. Stangel stated that OECA is refining a mechanism whereby Regions can coordinate to bundle cases across the country, apparently consistent with the High Yield Enforcement Initiative discussed above.

NPDES Update

Susan Lewis, EPA OPP Biological and Economic Analysis Division (BEAD), Allison Wiedeman, Office of Water, EPA, and Jordan discussed the status of EPA’s development of a National Pollutant Discharge Elimination System (NPDES) Pesticides General Permit (PGP) for EPA and six states (New Hampshire, Massachusetts, Alaska, Idaho, Oklahoma, and Nevada). This PGP will be available by October 31, 2011, along with a fact sheet and electronic form templates for the applications under the PGP.

According to the presentations, Florida, California, Washington, North Carolina, Virginia, Iowa, Minnesota, and South Dakota, which have delegated NPDES authority, already have developed their own PGPs. Twenty-five other states are in various stages of developing their PGPs. EPA urges all states to complete their PGPs by the October 31, 2011, deadline or the use of direct application of pesticides to aquatic environments would not be allowed. Based on discussions during the meeting, the POM WC voted to recommend that SFIREG send EPA a formal request to seek an additional six-month stay from the Court-imposed deadline.

USDA Biopreferred Program

Jim Roelofs, EPA OPP FEAD, discussed the federally-mandated United States Department of Agriculture (USDA) Biopreferred Program, which allows manufacturers to obtain a certification from USDA regarding the amount of biobased substance(s) contained in a product. According to the USDA definition, biobased products are goods composed in whole or in significant part of agricultural, forestry, or marine materials. For certification, manufacturers and vendors must submit an application for each biobased product to USDA. Previously, certified products were listed in a catalogue distributed to government procurers but USDA is planning to allow all certified products, including pesticides, to use the “USDA Certified Biobased Product” logo on their labels. The logo lists the percent of biobased component contained in the product. Roelofs stated that EPA is in ongoing discussions with USDA about the use of this logo on pesticide products and is assessing how to implement this mandate. Roelofs stated EPA is particularly concerned whether the logo could be misinterpreted to suggest a pesticide product is “safe.”

Other Topics

  • Update from OECA — Stangel stated that OECA expects to issue an updated version of the FIFRA Inspectors Manual by the end of calendar year 2011. He also stated that OECA is considering a web-based reporting system to facilitate state agency reporting to and communication with EPA.
  • Update from OPP — Roelofs provided the following updates: EPA has solicited public comment by November 14, 2011, on a petition from the conservation group, Save the Frogs, that seeks to ban the production and use of atrazine. OPP has enhanced its online Pesticide Product Label System. OPP is taking steps to ban certain rodenticides because, in OPP’s view, the registrants have not complied with required risk mitigation measures. OPP is progressing in its process of reviewing and updating its online Label Review Manual (LRM).
  • Forest Aerial Application Buffers — Rose Kachadoorian, Oregon Department of Agriculture (ODA), gave a presentation about ongoing investigations of complaints from a citizens organization described variously as the Pitchfork Rebellion, Pesticide Poisoning Victims United, and/or the Triangle Lake Group concerning aerial pesticide applications in forests and potential exposure to nearby communities. According to Bloom, EPA is still preparing a response to a related petition but is considering funding for air monitoring and wishes to develop more applicable air modeling.
  • Program Assessment Rating Tool (PART) Measures — EPA is assessing its reporting system for measuring the effectiveness of the enforcement program. EPA’s stated goal is the development of a data collection system that reduces management reporting and costs while supporting measurement of the program success in affecting the behavior patterns of the regulated community and consumers.
  • Accessing EPA Information/Data by States — Roelofs stated EPA is consulting with SLA and tribes to improve the efficiency with which EPA shares a range of data with the states and tribes. Roelofs also stated that EPA soon will make available a new website, “Chemical Search,” which will allow users to find information regarding data review records, study results, decision memoranda, and related EPA chemical-specific documents, by searching under the chemical name, pesticide chemical number, or CAS number.