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.”

Federal court to hear 'contaminated compost' case

By Ken McEntee

Owner
Composting News

May 20, 2016
A hearing has been reset to May 26 on a federal case that may determine whether compost made from grass clippings must be tested for pesticides before being used in 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 Western Growers Association (WGA).
Western Growers, a trade association whose members farm about 185,000 certified organic acres and use an estimated one million tons of compost every year, this month was granted amicus status by a federal judge in support of defendants USDA and its National Organics Program (NOP) in a federal lawsuit relating to their allowable use of potentially pesticide contaminated compost for certified organic food.
Federal Judge Jacqueline Scott Corley, of the U.S. District Court, Northern California District, also was considering amicus requests from the Organic Trade Association (OTA) and the California Certified Organic Farmers (CCOF) to join the case in support of the federal agencies.
The case involves NOP’s issuance, in April 2010, of guidance for Allowance of Green Waste in Organic Production Systems (Document NOP 5016). The guidance allows, for certified organic production, the use of green waste compost that may contain residue from synthetic pesticides applied to lawns. The three plaintiffs in the suit are asking the court to prevent the federal agencies from allowing such compost to be acceptable for organic production. Their primary argument is that NOP 5016 was put into effect without first undergoing proper public hearing procedures.
 
The case
 
The suit was filed in April 2015 by plaintiffs Center for Environmental Health (CEH), of Oakland, Calif., Center for Food Safety (CFS), of San Francisco and Beyond Pesticides, of Washington, D.C. against defendants USDA, USDA’s Agricultural Marketing Service and USDA’s National Organic Program.
The plaintiffs say USDA improperly issued NOP 5016, which they call the “Contaminated Compost Decision,” as a guidance document without providing public notice or comment opportunities. They say that since the document changed the rules for the use of compost in organic production, it constitutes a legislative rule, not simply guidance, and is subject to the federal government’s Administrative Procedure Act (APA), which mandates public notice and comment.
NOP regulations support the use of composted plant and animal materials to maintain or improve soil organic matter. The regulations specify that organic producers must “manage plant and animal materials to maintain or improve soil organic matter content in a manner that does not contribute to the contamination of crops, soil or water by plant nutrients, pathogenic organisms, heavy metals or residues of prohibited substances.”
The organic standards prohibit the use of synthetic chemicals, but allow for exceptions that are specified on a “National List” of allowed and prohibited substances. To be added to the National List, a synthetic substance must get agency approval after a review process to determine human or environmental harm and whether wholly natural substitutes are available.
Recognizing that trace amounts of synthetic chemicals may be present on farms, NOP regulations contain exceptions for unavoidable residual environmental contamination (UREC) in organic products. The exception, plaintiffs say, is intended for agricultural inputs generated on farms where farmers are unable to control contamination already in the soil and air and should not apply to compost made from grass clipping contaminated with synthetic pesticides.

Bifenthrin

In 2009, 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.
In December 2009 and February 2010, CCOF – one of the parties now seeking amicus status in the lawsuit – tested soil and crop samples where affected compost had been applied at the rate of five to six tons per acre and did not detect bifenthrin samples above a detection limit 0.01 parts per million. Following that, NOP issued NOP 5016, which applied the “unavoidable residual contamination” exception to compost.
“The NOP standards are process based and do not mandate zero tolerance for synthetic pesticide residues in inputs, such as compost,” the guidance document says. “Compost that is produced from the approved feedstocks…is acceptable for use in organic production provided that any residual pesticide levels do not contribute to the contamination of crops, soil or water.”
Plaintiffs in the lawsuit, which was filed five years later, said, “For the first time, the Contaminated-Compost decision allowed organic producers to use contaminated materials such as commercial food waste and lawn trimmings treated with synthetic pesticides as compost for their crops as long as the producers do not either directly apply synthetic pesticides or contribute to the contamination of crops, soil or water…The Contaminated-Compost decision did not define or explain how it would measure the contamination of crops, soil or water.”
The plaintiffs argue that bifenthrin, for example, is not an unavoidable environmental contaminant as allowed by NOP rules prior to NOP 5106, but rather a substance intentionally applied to grass that becomes a feedstock for compost.
“The Contaminated-Compost decision changed the legal status of bifenthrin and other pesticides that are prohibited for use in organic production but are now being allowed in green waste used in organic production,” the suit says. “Prior to the Contaminated-Compost decision, the National Organic Program banned producers from using contaminated compost materials in organic agriculture. But the Contaminated Compost decision renounced that ban, tolerating the use of contaminated compost materials and thus undermining organic standards.”
 
Dismissal denied
 
In September, the court denied USDA’s motion to dismiss the suit. The motion to dismiss was based on USDA’s insistence that public notice was not necessary before issuance of a “guidance document.” The plaintiffs argue that because NOP 5016 creates a change of policy, rather than just guidance.
“Defendants have not shown that as a matter of law NOP 5016 is merely a guidance policy for which no notice and comment is required,” the court ruled.
New parties
With just two weeks remaining before a scheduled hearing on summary judgment in the case, the plaintiffs objected to Western Growers’ last minute request to support USDA and NOP under amicus status. The court, however, granted amicus status early this month, said it would also consider last minute amicus status requested by OTA and CCOF. Corley also rescheduled the hearing on summary judgement – motions filed by each side to rule in their favor without further moving forward in the case – from May 12 to May 26.
Western Growers said its members – farmers in California, Arizona and Colorado – grow, pack and ship almost half of all U.S. produce, and produce a third of all fresh organic produce in the U.S. Yet, the association explained its last minute interest in the case because it became aware of the case and its implications for certified organic farmers in March.”
Western Farmers, however, said it wants to appear only to explain the implications should the court rule in favor of the plaintiffs.
Those implications, Giclas wrote, could include residue testing of all compost before it could be used for organic production.
“To improve soil organic matter content in a manner that does not contribute to contamination of soil, crops or water resources, our members use significant amounts of manufactured compost that is generally obtained from an OMRI (Organic Materials Review Institute) recognized commercial source,” Giclas wrote. “We are not aware of available substitutes for prepared compost for certified organic operations. The unavailability of compost unless proved to be analytically free of all known substances that are not allowed by the federal organic regulations will have a dramatic and negative impact on the soil on organic farms. It will likely impact adversely the soil fertility, soil tilth, biological activity and crop nutrients.”

New DuPont herbicide will contaminate compost

New herbicide will contaminate compost
Composting News
By Ken McEntee
June 17, 2011
In reply to the U.S. Composting Council’s (USCC) request for a special review of the registration for the new herbicide Imprelis, the U.S. EPA Office of Pesticide Programs said it is seeking the advice of legal council about the matter. Imprelis, made by DuPont, can survive the composting process and remain active in a finished compost product.
The product label specifies that clippings from lawns treated with Imprelis should not be used as a mulch or placed in a compost pile.
Imprelis has been registered in every state except California and New York for use by licensed applicators on lawns and other turf areas for control of broadleaf weeds like dandelion, clover and plantain. The Composting Council of Canada said it doesn’t appear that Imprelis is available for sale in Canada, having yet to be registered through Health Canada’s Pest Management Regulatory Agency (PMRA).
USCC last month issued an alert warning composters to watch out for grass clippings contaminated with the new herbicide. USCC said grass from treated lawns could end up in a compost pile, and unlike most herbicides, Imprelis will survive the composting process and still be active in the finished compost. Preliminary research has shown that Imprelis does not break down significantly faster than the leaves and grass in the compost, so the concentration stays about the same. An unsuspecting gardener using contaminated compost could end up damaging their flowers and vegetables, most of which are also broad-leafed.
The product label contains a warning about composting:
“Do not use grass clippings from treated areas for mulching or compost, or allow for collection to composting facilities. Grass clippings must either be left on the treated area, or, if allowed by local yard waste regulations, disposed of in the trash. Applicators must give verbal or written notice to property owner/property manager/residents to not use grass clippings from treated turf for mulch or compost.”
In March, DuPont issued suggested language for applicators to use regarding management of grass clippings from areas treated with Imprelis:
“Today we have treated your lawn with an innovative weed control product from DuPont. The product label requires that you do not use grass clippings from areas treated with Imprelis for mulching or compost, or allow for collection to composting facilities. Grass clippings must either be left on the treated area, or, if allowed by local yard waste regulations, disposed of in the trash.”
"One problem is that the warning is on page seven of a nine page label," said Dr. Stuart Buckner, executive director of the USCC. “Unfortunately not everyone reads or follows the label. We are requesting the U.S. EPA initiate a special review of the registration due to the likelihood of residual herbicide levels in compost damaging non-target plants."
He said he received a reply from the EPA acknowledging the request and saying that the Office of Pesticide Programs is seeking the advice of counsel. No timeframe was given.
USCC said it is unlikely that municipal or commercial compost will contain significant amounts of Imprelis, though it is possible in suburban areas where a large amount of clippings could come from commercially treated lawns. It could especially be an issue for places like schools, recreational fields or golf courses that use their grass clippings to make compost and then use the compost in landscape beds or gardens instead of placing back on turf.
"We are alerting our members to this issue, that they need to make sure their haulers are informed to not bring them grass clippings that have been treated with Imprelis," Buckner said. "We also suggest they work with their state's bureau of pesticide applicator licenses to ensure applicators know about this restriction.”
DuPont said Imprelis, an innovative product to control a wide spectrum of broadleaf weeds, is the “most scientifically advanced turf herbicide in over 40 years.” Imprelis contains a single active ingredient – Aptexor - that is absorbed by the roots and shoots of target weeds providing consistent performance.
Aptexor, the first compound in an advanced generation of carboxylic acid herbicides, has unique properties at both the molecular and whole plant levels that translate into more powerful herbicidal activity. The most noticeable symptoms after application include the bending and twisting of stems and the cupping of leaves.