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.”