Judge blocks green waste compost for organic growing

By Ken McEntee


Composting News

The ability to use of green waste compost to grow certified organic crops is in limbo after a federal judge vacated USDA guidance that allows compost that might contain pesticide residuals.
The Western Growers Association (WGA) called the ruling “short-sighted and potentially market-devastating.”
Following this month’s ruling by Judge Jacqueline Scott Corley, of the U.S. District Court, Northern California District, Guidance Document NOP 5016 will be vacated effective August 22. That will exclude green waste compost – mainly grass clippings - from being used in organic growing unless it is proven not to be contaminated by residual pesticides. The court sent the matter sent to the USDA, which administers the National Organic Program (NOP), for further action, providing a tight two-month window.
USDA created the problem in 2011 when it adopted NOP 5016 without putting the guidance document through the proper public review process as mandated by the federal Administrative Procedures Act (APA). That was the basis of a lawsuit filed last year by the Oakland, Calif.-based Center for Environmental Health (CEH) and two other environmental groups against USDA. The plaintiffs asked the court to vacate NOP 5016, which they dubbed the “Contaminated Compost Decision,” due to the APA violations. CEH said the allowance for compost that might contain pesticide residuals would compromise the integrity of the organics program.
"We applaud the court's decision to protect the integrity of the organic program," said Caroline Cox, research director for CEH. "We will continue to watchdog the USDA to insure that the program meets consumers' expectations for meaningful organic standards."
The Organic Trade Association (OTA), which represents more than 8,500 organic growers, processors and other businesses, said the court decision may disrupt the organic industry.
“OTA is concerned that prematurely removing this guidance for all organic operations will create serious disruptions to the organic industry, especially for organic producers who have been following the NOP’s regulations on the application of organic compost,” said Maggie McNeal, OTA’s director of media relations. “The lifting of this longstanding policy will also cause a significant disruption to certified organic manufacturers, handlers, and processors. Packaged organic food products must be made of certified organic ingredients obtained from certified organic farms. If the certification of the farms that produce these ingredients is voided, or even under challenge, certified organic manufacturers will be limited in their ability to obtain and use these ingredients.”
WGA, a trade association whose members farm about 185,000 certified organic acres and use an estimated one million tons of compost every year, argued prior to Corley’s ruling that vacating NOP 5016 would necessitate expensive pesticide testing on compost made from grass clippings before it could be used for certified organic production.
Such testing requirements would cause “extraordinary cost increases that may render organic production economically infeasible,” according to Hank Giclas, senior vice president, strategic planning, science & technology for WGA. The association provided input to the court as an amicus to show that the sudden withdrawal of the guidance would harm organic agriculture, composting operations and consumers in California.
“We asked the court to simply allow USDA to fix any procedural problem to the guidance without doing away with these important rules that codify well-established organic practices,” said Dennis Nuxoll, vice president of federal government affairs for WGA. “Now, starting in August, California organic farmers – who have followed USDA’s lead in good faith – won’t know the rules of the road.”
He said WGA is concerned that certified organic farmers will no longer enjoy the protections of NOP Guidance 5016 if their organic compost contains incidental residues of prohibited substances that they did not cause – opening them up to potential lawsuits.
“Furthermore, we recognize that no analytical testing currently exists to confirm the absence of all disallowed chemical substances, and the cost of trying to conduct such testing would be prohibitive and could render organic production economically unfeasible,” Nuxoll said.
Frank Franciosi, executive director of the U.S. Composting Council (USCC), said the council’s Legislative & Environmental Affairs Committee was looking into the matter and should have a response in early- to mid-July.
“It is very expensive to test for residuals of pesticides in compost, but the big thing is who is going to set the limits, if there are going to be any,” Franciosi said. “It is pretty impossible in today’s environment to have materials that are void of any kind of manmade substance.”
The suit was filed in April 2015 against USDA, USDA’s Agricultural Marketing Service and the NOP. Plaintiffs said NOP 5016 changed the existing rules for the use of compost in organic production and should have gone through an appropriate process of public notice and comment before it was implemented.
The issue originated in 2009, when the California Department of Food Control and Agriculture (CDFA) found residue of NOP-prohibited pesticide bifenthrin in samples of three different commercial green waste compost products made by Grover Environmental Products, Feather River Organics and Nortech Waste LLC. Bifenthrin is used to control fire ants and other inspects and is applied to lawns through a variety of brand name products. CDFA advised organic producers and accredited certifying agents that the three affected composts were banned for use in organic crop production.
NOP said it then addressed the issue nationally by sending a draft policy on pesticide residues in compost to accredited organic certifying agents and received six comments, all of which “urged the NOP to take an alternative approach” to the CDFA decision. Following that, USDA issued NOP 5016, which applied an “unavoidable residual contamination” exception to compost.
The lawsuit was filed five years later.
OTA said it will participate in any upcoming comment process to ensure that the needs of organic operations are heard.
“But we remain concerned that removing the compost guidance prematurely will throw the market into disarray,” OTA said. “With no guidance, there could be inconsistency – which is not desired by certified organic operations or consumers.”

New federal water rule blocked by court

 By Ken McEntee

As many observers expected, the Obama administration’s new “Clean Water Rule” that redefines the “Waters of the United States” (WOTUS) has been stayed in federal court. This month, the Sixth U.S. Circuit Court of Appeals issued a nationwide stay of the new rule, blocking its implementation while numerous court challenges across the country are sorted out and tried.

“The Sixth Circuit stayed the rule across the country to maintain the status quo while it determines if the court has jurisdiction to hear the challenge on its merits or whether the federal district courts should hear the cases first,” according to the Pacific Legal Foundation (PLF), which sued the administration on behalf of a group of landowners, farmers and cattlemen to invalidate WOTUS.

WOTUS, which was developed by the U.S. EPA and the Army Corps of Engineers, was issued on June 29 and immediately was challenged in 10 different suits involving more than 30 states and scores of private parties.

The stay was hardly a surprise. In July, Jay Lehr, science director for the Heartland Institute, a Chicago-based research organization, told Composting News that a barrage of lawsuits, injunctions and acts of Congress was likely to block the new regulations from going into effect.

“I think this will be in the courts for years,” said Lehr, the nation’s first Ph.D. in groundwater hydrology who was among the first advocates for the creation of the EPA almost 50 years ago. “With all of the various filers from multiple states and organizations, I can’t imagine that they will have trouble finding judges at the right levels who will place injunctions against the carrying out of this law.”

H. Reed Hopper, principal attorney for PLF, said that whichever court ultimately decides the fate of the new rule, the Sixth Circuit’s stay decision is noteworthy in its conclusion that the rule appears to be invalid on its face because:
 

• It is arguably inconsistent with Supreme Court decisions limiting the scope of the Clean Water Act, including PLF’s 2006 case of Rapanos v. United States;
• It was apparently issued without adequate public review and comment; and
• It may undermine the Clean Water Act’s goal of recognizing the primary role of the states in protecting local land and water use.

“As PLF argues in our challenge to the sweeping rule, the Obama administration’s new rule represents an unprecedented expansion of federal power that could bring virtually all the nation’s water and much of the land under command-and-control direction from Washington, D.C.,” Hopper said. “Its vast expansion of the Clean Water Act jurisdiction violates both the terms of the act and the constitution’s limits on federal authority. Under its vague and limitless terms, the only waters that are clearly not subject to federal regulatory power are a few that are expressly excluded, including artificial reflective pools, ornamental waters and some ground water.”

As reported in the August issue of Composting News, Robert LaGasse, executive director of the Mulch and Soil Council, expressed reservations about WOTUS, saying that the rule “presents a big problem for anybody who wants to make changes to their property.”

"The rules are so vague that you might get one answer from one regulator and a completely different answer from another regulator,” LaGasse said.

The U.S. Composting Council, on the other hand, isn’t concerned about the new rule, according to Cary Oshins, director of education for the organization.

“I don’t think this will make much of a difference for compost sites,” Oshins said.

Opponents like Hopper, however, said the rule, if enacted, would impact everybody.

“Property owners around the country will be faced with the prospect of being micro-managed by federal bureaucrats,” Hopper said. “This turns our federal system on its head. Under our constitutional framework, the states and localities are charged with the primary role in land use regulation and local water-quality protection. The new rule usurps the authority and responsibility of the states, and empowers bureaucrats in Washington D.C. to act as zoning and land use czars for the entire nation.”

Virga out, Scozzafava in as USCC director

By Ken McEntee
Composting News
May 2, 2013

After exactly 19 months on the job, Michael Virga’s tenure as executive director of the U.S. Composting Council ended on April 19. The council announced on May 2 that Lori Scozzafava, former deputy executive director of the Solid Waste Association of North America (SWANA), was hired as Virga’s replacement.

Scozzafava

Lorrie Loder, president of the council, declined to say whether Virga or the board initiated the parting.

“It was a mutual agreement,” she said. “Mike indicated that he had some other career opportunities.”

When asked whether the vote by the council’s Board of Directors was a vote to terminate an employment agreement, or whether it was a vote to accept a resignation, Loder said it would not be appropriate to comment.

Loder, however, confirmed that Virga, through his consulting company, Green Solutions, has submitted a proposal to do contract work for the council – possibly in a fundraising capacity. She said the board has not made a decision about accepting the proposal. Virga could not be reached to comment.
Virga operated Green Solutions before he was hired as executive director of USCC in September 2011 and after he left his position as executive director of the American Forest and Paper Association.

Frank Franciosi, past president of USCC, said Virga’s strengths were soliciting sponsors and raising money for the council’s Research and Education Foundation. He also confirmed that Virga has submitted a proposal to do contract work for the council.

“The board may consider it,” Franciosi said. “He left on good terms.”

Loder said the board is “excited” to hire Scozzafava.

“We did a search and we are very pleased that Lori accepted our offer,” she said.

She declined to say how many candidates were interviewed.

“Lori happened to be available,” she said. “With the industry growing like it is it is a perfect fit.”

The council said Scozzafava is a highly experienced association executive who has been involved in solid waste management for more than 25 years. She left her position as deputy executive director of SWANA in 2012.

Franciosi said Scozzafava’s experience in dealing with municipalities through SWANA will be valuable in her new position.

Scozzafava joined SWANA in 1999 and was deputy executive director from 2004 to 2012. Before that she was the director of the Maryland Department of the Environment’s Recycling Division, a consultant with Gershman, Brickner & Bratton Inc. and recycling coordinator for Morris County, N.J.

"Lori's extensive industry and association management experience will help the USCC and its membership reach their goals and rise to a new level," Loder said.

Scozzafava said this is a great opportunity to bring her association expertise and understanding of the industry to the council.

“The timing is perfect to position organics management into national prominence as a major contributor to achieving recycling goals and environmental sustainability,” she said.