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EPA Asserts Authority Over State Emergency Pesticide Exemptions that Further Restrict Uses

On October 27th the U.S. Environmental Protection Agency (EPA) published a Memorandum Supporting Decision to Approve Registration for the Uses of Dicamba on Dicamba Tolerant Cotton and Soybean.  Typically the scope of this sort of publication would be narrowly focused on agriculture uses of Dicamba not pertinent to the landscape industry but because certain states used a provision in FIFRA (Section 24(c)) to further restrict uses under an emergency exemption EPA pushed back, relying on the statutory construct of FIFRA.  In a footnote in the memorandum EPA stated: 

 “FIFRA section 24(a) allows a state to regulate pesticides more restrictively than EPA under the state’s own authority. However, some of the states that have imposed cut-off dates on dicamba uses have done so under section 24(c). Section 24(c) only authorizes states to issue registrations for additional uses of federal registrations to meet special local needs; if states wish to impose further restrictions on the dicamba products, or any other federally registered pesticides, they should do so under section 24(a) of FIFRA.” 

EPA reiterated this policy statement in the following Guidance on FIFRA 24(c) Registrations in November.  What does all this mean?  The 50 states remain co-regulators with the EPA and are permitted to further restrict the use of EPA approved pesticides under 24(a) which requires legislative and regulatory action (longer process); but states are not allowed to further restrict the use of EPA approved pesticides under an emergency exemption (faster) pursuant to 24(c), although they can apply to loosen emergency restriction under 24(c). In conclusion, we believe this is a proper reading of the statutory language prescribed by FIFRA but this decision has angered NGO’s and brings the interplay between Federal/State and Local policy makers engaging in pesticide decisions back into the forefront……ahem (PREEMPTION).   
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