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.”