District court vacates USDA organic regulations document in 'rare' decision

By Tara Mapes | Sep 16, 2016

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 agriculture.

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 operations.”

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 production.”

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 formal rule.

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 making process.”

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 synthetic insecticides.

The USDA is accepting comments on NOP 3012 through Oct. 31.

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