Dicamba: EPA Watchdog Rechecking Registration And “Local Need” Labels – DTN

©Debra L Ferguson Stock Photography

©Debra L Ferguson Stock Photography

EPA’s inspector general is planning to look into whether EPA acted properly when it registered dicamba in 2016 and 2018, as well as review states’ use of Section 24(c) labels, often used for dicamba in recent years.

The Office of the Inspector General (OIG) functions as an internal government watchdog for all the major federal and state agencies. Each government agency, including EPA, has an OIG division within it that regularly reviews the agency’s actions and programs for fraud, waste, abuse or mismanagement.



Once released, OIG reports are public and often require responses and action plans from the federal agency under review.

Each year, the EPA’s OIG releases its annual plan for audits, evaluations and investigations. The 2020 plan states that inspectors plan to look into the EPA’s past registrations of dicamba herbicides XtendiMax (Bayer), Engenia (BASF) and FeXapan (Corteva) in the second half of 2021.

The purpose of the investigation will be to “determine whether the EPA adheres to federal requirements and scientifically sound principles for the 2016 registration and 2018 renewal for the new uses of the dicamba herbicide,” according to the OIG annual plan.

Swirling Legal Matters

The OIG would not comment on why the division is planning to investigate the registrations of dicamba herbicides, only stating that it has the latitude to investigate any “FIFRA [Federal Insecticide Fungicide and Rodenticide Act] issues of concern,” OIG public affairs specialist Kentia Elbaum told DTN in an email.

The investigation would add yet another level of scrutiny to the registrations of dicamba herbicides, which have come under fire since their release in 2017 for widespread claims of off-target injury to sensitive crops from scientists, farmers, environmentalists and rural residents in the Midwest and South.

University weed scientists have conducted research showing that the herbicides are capable of volatilizing and moving off-target for hours and even days after application, despite companies marketing the three herbicides as low-volatility formulations.

Bayer and BASF are also facing multiple lawsuits from farmers over crop injury from dicamba, and recently lost one such court case to Bader Farms in southeast Missouri, which both have vowed to appeal.

Bayer and EPA are also facing a lawsuit pending in the Ninth Circuit Court of Appeals, wherein farmer and environmental groups argue EPA violated federal laws when registering XtendiMax in 2016 and 2018.

The OIG also reported a future investigation into Section 24(c) Special Local Needs labels, to “determine what controls EPA has in place to verify states and whether the EPA is following procedures and policies for review and approval of Special Local Needs Exemptions for pesticides.”

“Local Need” Labels Raise Related Issues

States’ use of Section 24(c) labels has come under scrutiny by EPA in the past two years, since many states have turned to them to restrict dicamba herbicides beyond the federal labels.



In March 2019, EPA announced that it was re-evaluating whether or not states would be permitted to use 24(c) in this manner. At issue is the actual language of Section 24(c), which technically only mentions allowing states to grant additional uses of a federal pesticide.

But EPA has long permitted states to add restrictions to address local needs, such as environmental, crop and worker safety, which it acknowledges in its official guidance on 24(c) labels.

In its March 2019 announcement, EPA said that it would make any decisions on 24(c) changes public and available for comment, but so far, the agency has not done so.

Although the OIG investigations into dicamba and 24(c) are slated for 2021, inspectors are already doing work to prepare for them, OIG’s Elbaum confirmed.

“It is routine to discuss our evaluation and audit topics with knowledgeable stakeholders to ensure that the scope and focus of our work is appropriate,” Elbaum said.

A Need For State-Level Labels?

Rose Kachadoorian, who serves as program manager for the Oregon Department of Agriculture’s Pesticide Program, is one such stakeholder.

Oregon is one of the states with the highest number of Section 24(c) labels in the country — about 240 — largely because the state produces so many minor crops, such as micro-seed crops, which often aren’t represented on federal pesticide labels, explained Kachadoorian.

This expertise earned her a call from OIG inspectors in late February, and they inquired about how Section 24(c) labels work and how her state has used them in the past.

Kachadoorian said she gave the inspectors background on 24(c), but also stressed her state’s need for the longstanding practice of issuing 24(c) labels that add restrictions, as well as uses, to federal labels.

“This was something that has happened for decades,” she told DTN. “The first time we heard there were any problems associated with it was when states started trying to protect non-target crops, endangered plants species and riparian areas from dicamba volatilization and drift with 24(c) labels.



Then, suddenly, it becomes problematic for EPA, which was really puzzling to the states because it had been such a long-term practice.”

Read more about states’ efforts to preserve this use of 24(c) here: https://www.dtnpf.com/….

You can see OIG’s annual report for 2020 here: https://www.epa.gov/….

 
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