SAN FRANCISCO – On June 20, the U.S. District
Court for the Northern District of California vacated the United States
Department of Agriculture’s (USDA) guidance document ruling it violated the
Administrative Procedures Act (APA).
In the lawsuit, Center for Environmental Health, et al. v. Vilsack, the Center for
Environmental Health, the Center for Food Safety and Beyond Pesticides filed a lawsuit against USDA officials contending it violated the APA by
issuing a guidance document that
amended official organic regulations without providing public notice and
comment as required by the act.
The plaintiffs argued the USDA’s document
permitted certified organic producers to use compost materials that contain previously
prohibited synthetic pesticides.
In August through October 2009, The California Food
and Drug Administration (CFDA) found detectable levels of a residential
insecticide, bifenthrin, in three compost products listed for use in organic
The National Organic Program (NOP) is a regulatory
program contained within the USDA and is responsible for developing national
standards for organically produced agricultural products.
NOP regulations maintain the National List of Allowed
and Prohibited Substances that identifies synthetic substances that may be used,
and natural substances that may not be used, in organic crop and livestock
production. Bifenthrin is not registered on the list, and NOP regulations
prohibit any compost used in organic production from containing a synthetic
substance not listed. In turn, the CDFA banned all three compost products from
use in organic production.
Nortech Waste LLC, a producer of one of the banned
composts, contacted the NOP to inquire if it was going to “back the action of
the [CDFA].” Mark Bradley, chief of National Organic Program Accreditation,
responded to Nortech, “[b]ifenthrin is a synthetic substance which is not on
the NOP National List of Allowed and Prohibited Substances. We have consulted
with the state of California on this issue and concur that compost containing
the substance bifenthrin is not eligible for use in organic farming
Several months later the USDA issued NOP 5016, titled Guidance Allowance of Green Waste in Organic Production Systems, which states
that its purpose is to, “provide clarification on the allowance of green waste
and green waste compost in organic production systems under the National Organic
Program (NOP) regulations.” It recites the regulation’s requirement that a
producer may not use any product that contains a synthetic substance not included
on the National List of Allowed substances but included an additional note at
the center of the lawsuit.
The additional note stated, “Green waste and green waste compost that is produced from approved
feedstocks, such as, non-organic crop residues or lawn clippings may contain
pesticide residues. Provided that the green waste and green waste compost (i)
is not subject to any direct application or use of prohibited substances (i.e.,
synthetic pesticides) during the composting process, and (ii) that any residual
pesticide levels do not contribute to the contamination of crops, soil or
water, the compost is acceptable for use in organic production.”
Plaintiffs filed this lawsuit nearly five years later
contending that NOP 5016 and its additional instructions “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
Plaintiffs requested the court vacate NOP 5016 and
require the USDA to follow proper procedures.
Defendants countered in the lawsuit
that NOP 5016 was exempt from formal rulemaking because it simply clarified
that organic producers can use green waste compost with “de minimis background
levels of pesticide residue” and thus qualified as guidance rather than a
Judge Jacqueline Scott Corely ruled
NOP 5016 was not limited to ‘unavoidable’ contamination, or de minimis levels,
of compost but rather it specifically allowed the use of product containing
the synthetic substance, which was prohibited before its release. The court
noted most problematic in the case was the defendants’ response to the banned
compost producers concerns.
In her ruling, she described how in October 2009,
the agencies circulated a few drafts to establish a threshold for Unavoidable Residual Environmental Contamination (UREC). The drafts were rejected by the defendants because they acknowledged it
would require them to “establish a tolerance for compost and other inputs we
should obtain lots of scientific justification for the levels that we
establish, have the NOSB approve of the tolerance levels, and go through a rule
Corely wrote in her findings: “The program then adopted NOP 5016 which provides ‘no tolerance levels for pesticide
contaminants in compost.’ This was done, not as a matter of scientific judgment
or in the exercise of technical expertise, but because the agency determined
that it would be too difficult and too time consuming to set tolerance levels.”
Corely’s ruling said the USDA’s new
rule has broader effects because the language in NOP 5016 permits any green
waste or green waste compost used in organic production to contain any
synthetic pesticide, not just bifenthrin.
The court concluded that since the guidance document
was not issued following the APA’s required notice and comment protocol, the
guidance document must be vacated.
The court’s vacatur is effective as of Aug. 22. Any green waste compost purchased or used between 2010 and Aug. 22 is grandfathered in and not subject to this order.
“It’s rare to hold that a guidance document is a legislative rule,"
Anthony Cavender, an environmental law attorney with Pillsbury Law in Houston,
told the Northern California Record.
"It has real
consequences. The trial court was very definitive in its ruling. It’s hard to
say how much impact this ruling has on other agencies and it may just be a
cautionary ruling that other agencies have to be apprised of.”
Cavender said the APA is an important government act to respect.
“After the Depression, through the federal government, several
new agencies were created to respond to the crisis of the Great Depression," he said.
"These agencies were given a lot of power over the economy. After World War II ended,
there was a concern about these agencies' power. So the APA was enacted in 1946
to establish how to implement rules, establish guidelines, appeal rights of the
people and let people know what they’re up to.”
He said since the APA inception, the government has created numerous
agencies that need checks and balances to ensure they are accountable to the
public. The ruling respected this act's intentions.
“The court was convinced that what the agency had done here by issuing this so-called
guidance document was done to basically amend the rule they had on books,
almost to interpret it out of existence,” Cavender said.
There is no evidence the USDA plans to appeal the decision. In response to
the decision, it has released a new document to replace NOP 5016. On Aug. 30, the USDA wrote,
“[NOP 3012] specifies the criteria and process that certifying agents must
follow when approving substances for use in organic production and handling.”
The document no longer contains the note permitting the use of banned
The USDA is accepting comments on NOP 3012 through Oct. 31.