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Judge strikes down USDA compost guidance, orders a do-over

An industry trade group representing California and Arizona produce growers isn’t happy with a recent federal court decision striking down government guidance for using composted municipal green waste on organic farms.

Applying industrial compostIn a statement released June 21, Western Growers of Irvine, CA, expressed disappointment in the June 20 ruling by U.S. District Judge Jacqueline Scott Corley of the Northern District of California that sided with the plaintiffs in Center for Environmental Health, et al, vs. Tom Vilsack, et al.

The judge’s decision tossed out USDA’s National Organic Program Guidance 5016: The Allowance of Green Waste in Organic Production Systems issued in July 2011 because the department didn’t gather enough public comment. The U.S. Department of Agriculture and Agriculture Secretary Vilsack now have 60 days to issue new guidance on the matter and gather comments before a Aug. 22 deadline.

According to Western Growers, Corley’s ruling leaves some certified organic farmers both in the dark about how to proceed and potentially open to lawsuits should residues of prohibited pesticides be found in their organic compost, regardless whether the farmers caused them to be present.

“We asked the court to simply allow USDA to fix any procedural problem to the guidance without doing away with these important rules that codify well-established organic practices,” said Dennis Nuxoll, Western Growers vice president of federal government affairs. “Now, starting in August, California organic farmers – who have followed USDA’s lead in good faith – won’t know the rules of the road.”

The Oakland-based Center for Environmental Health (CEH), along with the Center for Food Safety (CFS) and Beyond Pesticides, initially filed the case in April 2015, arguing that USDA’s adoption of the guidance had created a loophole for synthetic pesticides to contaminate compost used for organic food production.

Arizone-lettuce-field“In this case USDA decided to unlawfully ignore vital public participation and transparency requirements while undermining the organic standard, creating a new loophole for pesticides,” said George Kimbrell, CFS senior attorney, when the suit was filed. “Worse, this decision is part of a larger USDA pattern and practice of decision-by-fiat. We will not let it continue.”

The groups were alarmed after the California Department of Food and Agriculture (CDFA) found compost contaminated with the insecticide bifenthrin in 2009 and put a stop to the use of three compost products.

According to Beyond Pesticides, bifenthrin is a possible cancer-causing agent, endocrine disruptor, and neurotoxic chemical. After the UDSA contamination allowance in 2010, the California prohibition was lifted, the group stated.

USDA attempted to have the case dismissed this past September by alleging, among other things, that the plaintiffs had no standing to sue because they could not show any injury as a result of the guidance. However, Corley denied the agency’s motion to dismiss on Sept. 29, 2015.

Western Growers, the Organic Trade Association and California Certified Organic Farmers intervened in the lawsuit this spring, arguing that the organic industry would suffer “profound disruptions” and be forced to institute expensive pesticide residue testing regimes if the plaintiffs prevailed.

The judge noted in her ruling that the testing burden is on the organic certifier and not the farmer to “ensure that all inputs (such as commercially made compost) meet the requirements for labeling as organic.” She also called the economic consequences claimed by the defendants and the intervening groups “overstated, at best.”

http://www.dreamstime.com/stock-photos-healthy-eating-organic-vegetables-garden-vegetarian-nature-image41849453After last week’s court decision, Kimbrell of CFS lauded what he called a “resounding defeat” for some segments of the food production industry.

“The court’s decision upholds the integrity of the organic standard and is an incredible victory for organic consumers, organic farmers and the environment. On the flip side, the decision is a resounding defeat of industrial food actors trying to sell out organic integrity to pad their own pocketbooks,” he stated.

However, the ruling didn’t give the plaintiffs everything they wanted. Corley exempted some compost from her decision, writing that, “(A)ny green waste compost purchased or used between 2010 and Aug. 22, 2016, is grandfathered in and not subject to this order.”

In the Western Growers statement, the defendants and amicus groups hinted that they may appeal.

“We believe the organic industry will be harmed by this type of legal and economic uncertainty and will explore all available remedies to insulate organic farmers from this short-sighted and potentially market-devastating ruling,” they stated.

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