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Deciding between 'and,' 'and/or' in pesticide drift labeling is critical

by Robert Schubert
CropChoice editor

(Thursday, Dec. 5, 2002 -- CropChoice commentary) -- The Environmental Protection Agency is close to announcing new spray drift labeling language for azinphos-methyl (AZM), a minor crop insecticide. But the absence of an "or" in one critical sentence could make regulators' jobs far more difficult when it comes to responding to pesticide drift. Also at issue is whether, in the rush to re-register azinphos with weaker wording, the Agency has circumvented its own pubic input process.

The Agency released a draft "Pesticide Registration Notice" in August 2001 to be applied to most pesticides. It read: "Do not allow spray to drift from the application site and contact people, structures people may occupy at any time and the associated property, parks and recreation areas, non-target crops, aquatic and wetland areas, woodlands, pastures, rangelands, or animals."

Various organizations responded. One, the Association of American Pesticide Control Officials (AAPCO), which represents the state-level regulators who work with the federal government on enforcement, presented ideas to strengthen the notice.

The Association suggested modifying the drift statement to read: "Do not apply this product in a manner that allows spray to drift from the application target site and/or cause harm to humans, animals or other non-target sites."

Inserting that "and/or" would make it more "protective of the sites listed in EPA's proposal, eliminates the concern about occupied versus unoccupied structures, addresses, at least in part, EPA's and the state lead agencies' recognition that some de minimus level of drift occurs and would not limit states enforcement response abilities to the sites listed. We believe this language also provides sufficient flexibility to states to allow for responsible regulatory and enforcement judgements that take regional, state and site-specific issues into consideration."

The Californians for Pesticide Reform coalition went further in its criticisms of the proposal:

"In particular, we object to the idea that some de minimus level of drift is expected and acceptable. Our point of view is that any amount of chemical that drifts away from the application site and makes its way into other fields, our homes, schools, or workplaces is unacceptable. We are not recommending that U.S. EPA set 'safe' levels of drift for each pesticide---this approach is impossible because of the unknowns associated with exposure to multiple pesticides. A better approach would be to ban or severely restrict most spray applications of pesticides and use of volatile pesticide chemicals."

EPA punted, placing universal drift labeling for pesticide products on the back burner. It did promise to continue a public dialogue, release a second draft of the registration notice and bring the drift policy discussion to a constructive close. Instead, the Agency has allowed the deadline for re-registering a specific chemical to derail the policy process for pesticides in general.

That particular chemical is azinphos-methyl (AZM), a potent neurotoxin. If EPA fails to comply with a court order to complete work on this insecticide in time for the 2003 season, then the product would roll out with the current labels. Thing is, the existing language is stricter in that it "basically disallows spray drift," says Susan Kegley, staff scientist with the Pesticide Action Network.

Astoundingly, EPA is furiously working on new azinphos-methyl language with the "and," not the "and/or." This would set a higher legal and enforcement standard for stopping pesticide drift. More specifically, it would require field regulators, whether they're from EPA or from the states, to prove BOTH drift and harm.

"The applicators and growers are really fighting to weaken the language," Kegley says. "It will lead to more people being poisoned and legitimize drift."

Marvin Lawson, current president of AAPCO and acting director of the Division of Consumer Protection with the Virginia Department of Agriculture and Consumer Services, was rather tight lipped about his views on the subject. He said only that "the feds are responsible for labeling and it is their prerogative. For some states, the 'and' language would make enforcement more difficult. It would not for other states because different states put more emphasis on demonstration of harm."

There is no assurance that this approach to label language will provide the same level of drift protection. So why is the Agency going with the 'and' standard, which would be harder to meet in the field and in court?

Perhaps the answer lies in that failure to follow up faster on the 2001 registration notice. With the deadline looming for completion of work on azinphos-methyl, industry interests complained that EPA was going to set policy for the insecticide, possibly including the stronger 'and/or,' without following through on its rule-making process. Ironically, EPA responded by doing just that. It cut short the work on generic pesticide drift to give industry what it wanted with azinphos.

Down the road, will EPA keep its promise to make weaker drift labels on this particular chemical the exception? Or will the Agency, by opting for 'and' with the AZM registration, set sweeping drift policy precedent for all pesticides?