The Center for Food Safety (CFS) is challenging EPA's claim it lacks authority to regulate labels for seeds treated with pesticides, calling the stance a misinterpretation of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) that is preventing officials from requiring strict label language to protect bees from seed dust released during planting.
In a previously undisclosed April 23 letter to EPA and the U.S. Department of Agriculture (USDA), CFS says EPA's interpretation that seeds coated with pesticides -- a new staple of domestic commodity production -- are "treated articles" that are exempt from FIFRA is legally incorrect.
"EPA is unnecessarily avoiding the imposition of language that could reduce or mitigate the impacts of treated seeds and their associated pesticidal 'dust off'," CFS says, adding that FIFRA explicitly requires EPA to determine a product is misbranded and to bar its use when labels are inadequate to protect the environment from a registered pesticide.
They also charge that the agency's interpretation has led state regulators to avoid investigating bee deaths from exposure to dust from planting seeds treated with the controversial neonicotinoid insecticides. "EPA-sanctioned [State Lead Agencies] are refusing to investigate and enforce massive bee kills resulting from this dust-off," the group says.
The letter to EPA's Pesticide Registration Division, and USDA's Seed Regulatory and Testing Division responds to documents CFS obtained through the Freedom of Information Act (FOIA) that show the two federal agencies are working privately with state regulators and industry representatives to update labels on bags of pesticide treated seeds.
Those documents include minutes from an Oct. 21, 2013 meeting of the "Treated Seed Tag / Bag Initiative" that show EPA officials are concerned current seed bag labels are outdated and leading to misuse of pesticide products. Additionally, new labels are needed to ensure clear and consistent language, according to the meeting minutes.
EPA did respond to an inquiry on the CFS letter that included a request to clarify its position on whether FIFRA allows the agency to regulate treated seeds.
But industry sources familiar with the effort say a group of state and federal officials as well as industry representatives has been working to revise the labels for several years to ensure farmers have accurate information on use of treated seeds, and that discussions focus on a variety of issues ranging from the total quantity of pesticide that may be applied to a field to pollinator protection.
One industry source also said group members, including EPA officials, are following clear FIFRA language that pesticide-coated seeds are treated articles and so not regulated as a registered pesticide. Instead, USDA regulates the products through the Federal Seed Act. But the source also said EPA does require pesticide distributors to ensure certain specific EPA language is included on labels of bags of treated seeds.
But CFS argues in its letter that FIFRA precludes EPA from approving language at any stage of the pesticidal supply chain that allows for exposures that are likely to adversely affect the environment, and which are not mitigated or investigated by EPA or state agencies.
In addition to concerns over FIFRA authority, CFS raises a host of other concerns, including that the proposed changes are insufficient to protect bees from pesticide dust, fail to warn against groundwater contamination, and show EPA and USDA are ignoring their obligations to consult with federal wildlife officials to assess risks from treated seeds to listed species or their habitats, as required by the Endangered Species Act (ESA).
CFS is also charging that the industry-heavy process to revise the seed bag labels violates the Federal Advisory Committee Act (FACA) which requires public notification of, and balanced representation on, advisory panels.
The group sent a May 5 letter to EPA and USDA calling on the agencies to immediately terminate their involvement in the process. "Pesticide companies, seed companies, and other industry groups have completely dominated these meetings and exchanges, with no public notices of meetings, no establishment of a FACA Advisory Committee, no opportunity for the public to provide statements, and a number of other FACA violations," the letter says.
The environmentalists' push comes as the seeds have become a staple of domestic commodity crop production. According to CFS' March 24 report, "Heavy Costs: Weighing the Value of Neonicotinoid Insecticides in Agriculture," nearly all corn seeds and roughly half of soybeans planted in the United States are treated with neonicotinoids, a massive increase since the late 1990s, when EPA first began approving neonicotinoid products.
In many cases, the group says, neonicotinoid-treated seeds are farmers' only option without regard for the need to fight harmful insects. "This prophylactic pre-planting application occurs regardless of the pest pressure expected in the field, as typically there is no monitoring or sampling of crop fields for pest presence prior to application," the report says.
Environmentalists say the insecticide, whether in seed dust or spray form, is partially responsible for the massive decline of bee populations, an issue that EPA and USDA have been struggling since 2006 to address.
As part of that effort, EPA has focused on risks to bees from pesticides, and USDA has sought to address other factors, including parasites, disease and diminishing habitat.
The two agencies held a March 2013 summit on risks to pollinators from neonicotinoid dust emitted during planting, an exposure pathway that has prompted Health Canada's Pest Management Regulatory Agency (PMRA) to announce new requirements to protect pollinators from neonicotinoid coatings on corn and soybean seeds late last year.
In a statement last September, the Canadian agency said that in 2012, bee deaths had a high correlation with areas of high corn production, and that 70 percent of dead bees tested positive for residues of neonicotinoids that are used to treat corn seeds.
With the statement, PMRA announced measures to protect pollinators, including requiring dust-reducing lubricants, safer planting practices and enhanced warning labels on seed packages. The agency is also seeking updated information "to support the continued need for neonicotinoid treatment on up to 100 [percent] of the corn seed and 50 [percent] of the soybean seed."
Last summer, EPA strengthened labeling requirements for foliar applications of neonicotinoids after the controversial class of pesticides were suspected in bee kills following pesticide sprays at several sites in Oregon. At the time, the agency indicated the new labels were only one step in the agency's larger incremental process to protect pollinators.
Subsequently, EPA officials told its pesticide advisors that they are seeking to address risks from pesticide-treated seeds to bees, but that additional measures are unlikely to come quickly. Agency officials have also told other advisors that they are creating a list of best management practices, such as using certain planting equipment and lubricants that limit the release of dust during planting to protect pollinators.
But CFS has long argued that EPA is not moving fast enough to address risks from neonicotinoids to pollinators. The group initially included concerns about labeling of neonicotinoid products as part of the lawsuit that it filed, together with other environmental groups and beekeepers, against EPA last year in U.S. District Court in the Northern District of California.
But the plaintiffs dropped the labeling issue from the lawsuit after EPA strengthened labeling requirements for neonicotinoids used in foliar applications. Other aspects of the lawsuit challenging the agency's registration of certain neonicotinoid pesticides is ongoing.
In the letter, CFS also argues the proposed updates to seed bag labels, which the group obtained through a FOIA request to USDA, show EPA is ignoring beekeepers' suggested language for protecting bees from neonicotinoid dust from treated seeds.
The National Honey Bee Advisory Board in a February 2013 letter urged EPA to warn farmers that planting pesticide treated seeds can harm bees through drifting pesticide dust during planting, and that lubricants and deflectors should be used to minimize dust off, according to the CFS letter.
Beekeepers also urged EPA to require farmers to plant pesticide-treated seeds in accordance with Integrated Pest Management practices, a philosophy that calls for minimizing use of chemicals in agriculture. The CFS letter also notes that EPA and USDA have repeatedly backed farmers' use of IPM, but that the proposed label updates say nothing about minimizing unnecessary pesticide use.
A Feb. 7 "Treated Seed Tag/Bag Statements" document shows federal officials seeking to address a variety of concerns on seed bag labels, including preventing use of treated seeds for animal feed and warning pesticide handlers to take steps to limit their exposure, as well as pollinator protection.
The document requires bag labels for seeds treated with certain pesticides to include warnings that the "compound is highly toxic to bees exposed directly (contact)," and that farmers should ensure planting equipment is functioning in accordance with manufacturer recommendations to minimize seed abrasion and reduce drifting dust.
In the letter, CFS argues those statements are inadequate to protect bees and also demonstrate that "The impetus for these new bag/tag labels is clearly not driven by pollinator protection concerns." -- Dave Reynolds
Originally published in the May 30, 2014 issue of Inside EPA Weekly Report.