The EPA Sidestepped the Normal Public-Comment Process to Approve a Cancer-Linked Herbicide

Johnathan Hettinger April 6, 2020

Edi­tor’s Note: This sto­ry was orig­i­nal­ly pub­lished on The Mid­west Cen­ter for Inves­tiga­tive Reporting.

This week, the U.S. Envi­ron­men­tal Pro­tec­tion Agency announced that soy­bean farm­ers in 25 states are now able to spray a pes­ti­cide that the agency has deter­mined is like­ly to cause can­cer and drift hun­dreds of feet from where it is applied.

The move was wide­ly praised by farm­ers, who view the weed­killer as a new tool in an ever-increas­ing bat­tle with super weeds” that have devel­oped resis­tance to as many as six dif­fer­ent types of weed­killers, includ­ing glyphosate, the most wide­ly used pes­ti­cide in the U.S.

The her­bi­cide, isox­aflu­tole, will be able to be sprayed on soy­beans that have been genet­i­cal­ly engi­neered to with­stand it. The weed­killer kills broadleaf plants and is already used on corn in 33 states. Isox­aflu­tole is man­u­fac­tured by Ger­man agribusi­ness giant BASF and sold under the brand name Alite 27.

Bay­er orig­i­nal­ly com­mer­cial­ized the mod­i­fied soy­beans and her­bi­cide under its Lib­ertyLink sys­tem but was required to sell it to BASF as part of the merg­er agree­ment when it bought Mon­san­to in 2018.

In a press release announc­ing the deci­sion on Mon­day, the EPA tout­ed the feed­back the agency received from farm­ers on the need for the herbicide. 

But the agency side­stepped the usu­al pub­lic input process for the deci­sion. The herbicide’s reg­is­tra­tion was opened for pub­lic com­ment, but not list­ed in the fed­er­al reg­is­ter, where agen­cies pro­vide notice that they are con­sid­er­ing open­ing a new rule. The agency gen­er­al­ly pub­lish­es sig­nif­i­cant rule changes in the register.

The press release caught every­one off guard, we were just wait­ing for the EPA to open the com­ment peri­od, and we nev­er saw it,” said Nathan Don­ley, a senior sci­en­tist at the Cen­ter for Bio­log­i­cal Diver­si­ty, a nation­al, non­prof­it con­ser­va­tion organization. 

As a result, all 54 com­ments received by the agency were prais­ing the tech­nol­o­gy or ask­ing the agency to allow wider use of the herbicide.

Clear­ly no one from the pub­lic health com­mu­ni­ty knew about this because no one com­ment­ed,” Don­ley said. Yet there was all these indus­try com­ments, all these pos­i­tive com­ments. Some­one was tipped off that this dock­et had been opened. One side was able to com­ment, the oth­er wasn’t.”

Asked why the agency did not post the notice in the fed­er­al reg­is­ter, an EPA spokesman said via email the agency request­ed pub­lic com­ment on the pro­posed reg­is­tra­tion deci­sion. Based on EPA’s risk analy­sis and care­ful con­sid­er­a­tion of pub­lic input, EPA con­clud­ed that the appli­ca­tion of isox­aflu­tole on genet­i­cal­ly engi­neered soy­beans with cer­tain use con­di­tions could be done in an envi­ron­men­tal­ly-pro­tec­tive man­ner in cer­tain parts of the country.”

When asked if BASF knew why there was no fed­er­al reg­is­ter notice, com­pa­ny spokes­woman Odessa Hines said in an email response there was a 30-day open com­ment peri­od from Jan. 15, 2020 to Feb. 132020:

Even with­out sig­nif­i­cant pub­lic com­ment, the EPA severe­ly lim­it­ed the areas where the weed­killer can be sprayed because of its like­li­hood to harm endan­gered species. The weed­killer, which kills broadleaf plants, is already used on corn in 33 states, but was only approved in spe­cif­ic coun­ties in 25 states. 

The her­bi­cide was not approved for use in Illi­nois and Iowa, two of the nation’s lead­ing soy­bean pro­duc­ing states. The reg­is­tra­tion is good for five years.

This is basi­cal­ly an her­bi­cide that should­n’t be approved at all for any use. It’s that bad real­ly on both the human health and envi­ron­men­tal fronts,” said Bill Freese, sci­ence pol­i­cy ana­lyst at the Cen­ter for Food Safe­ty, a nation­al non­prof­it pub­lic inter­est and envi­ron­men­tal advo­ca­cy orga­ni­za­tion work­ing to pro­tect human health and the environment . 

Freese co-authored a com­ment in 2013 for the U.S. Depart­ment of Agri­cul­ture when the agency was con­sid­er­ing dereg­u­lat­ing soy­beans genet­i­cal­ly engi­neered to with­stand being sprayed by the her­bi­cide. The USDA approved the soy­beans. He said he was ready for an EPA pub­lic com­ment peri­od but nev­er saw it.

Among his com­plaints, Freese said the EPA has deter­mined isox­aflu­tole is a like­ly human car­cino­gen and inhibits a human liv­er enzyme. Addi­tion­al­ly, even very small amounts of the her­bi­cide can cause sig­nif­i­cant dam­age to plants and EPA stud­ies show the her­bi­cide is like­ly to cause harm at up to 1,000 feet. The label is also extreme­ly com­pli­cat­ed, requir­ing farm­ers to know their soil type and how high the water table is, Freese said.

It’s out­ra­geous,” Freese said. They knew this is a bad news chem­i­cal, and it was very like­ly done because they didn’t want to give envi­ron­men­tal groups the oppor­tu­ni­ty to com­ment on this, so they can avoid scrutiny.”

Don­ley and Freese said their orga­ni­za­tions are review­ing the legal options to chal­lenge the herbicide’s approval. The orga­ni­za­tions are already suing over the EPA’’s approval of dicam­ba, anoth­er volatile her­bi­cide sprayed on genet­i­cal­ly engi­neered soybeans. 

The pes­ti­cide will not be wide­ly avail­able until 2021, BASF said in a press release prais­ing the EPA’s decision. 

It is unclear how wide­ly sprayed isox­aflu­tole will be, but Freese and Don­ley said the prod­uct wouldn’t have been com­mer­cial­ized if the com­pa­ny didn’t think it was like­ly to be used. 

Addi­tion­al­ly, use is only like­ly to grow. Right now, about 600,000 pounds of the her­bi­cide are sprayed on corn each year, accord­ing to the U.S. Geo­log­i­cal Survey.

BASF said that near­ly three out of four farm­ers are deal­ing with glyphosate-resis­tant weeds and 58 per­cent are deal­ing with resis­tance to oth­er her­bi­cides as well. Weeds have already been doc­u­ment­ed to devel­op resis­tance to the class of her­bi­cide that isox­aflu­tole belongs to.

Today’s man­age­ment prac­tices of rely­ing on a sin­gle mode of action are not sus­tain­able for long-term con­trol of prob­lem weeds,” said Scott Kay, vice pres­i­dent of U.S. Crop, BASF Agri­cul­tur­al Solu­tions, in a press release. BASF con­tin­ues to bring new inno­va­tions, like Alite 27 her­bi­cide, to mar­ket to give grow­ers more oper­a­tional con­trol over their crops and to help elim­i­nate trou­ble­some weeds in their fields.”

Bill Gor­don, a Min­neso­ta soy­bean farmer and pres­i­dent of the Amer­i­can Soy­bean Asso­ci­a­tion, was one of the peo­ple to sub­mit a pub­lic com­ment on the weedkiller’s approval. 

In the EPA press release announc­ing the deci­sion, Gor­don said the ASA appre­ci­ates the dili­gence by EPA to pro­vide farm­ers access to this new tool with the nec­es­sary guid­ance for using it safe­ly to pro­tect peo­ple, our wildlife, and the environment.”

Gordon’s home state of Min­neso­ta, along with Wis­con­sin and Michi­gan, has already banned the use of the pes­ti­cide on corn in many coun­ties due to its like­li­hood to con­t­a­m­i­nate ground­wa­ter, which is one of the ways the EPA says it can cause cancer.

Edi­tor’s Note: The Mid­west Cen­ter for Inves­tiga­tive Report­ing is a non­prof­it, online news­room offer­ing inves­tiga­tive and enter­prise cov­er­age of agribusi­ness, Big Ag and relat­ed issues through data analy­sis, visu­al­iza­tions, in-depth reports and inter­ac­tive web tools. Vis­it us online at www​.inves​ti​gatemid​west​.org

Johnathan Het­tinger is a jour­nal­ist based in Liv­ingston, Mon­tana. Orig­i­nal­ly from Cen­tral Illi­nois and a grad­u­ate of the Uni­ver­si­ty of Illi­nois, he has worked at the Mid­west Cen­ter for Inves­tiga­tive Report­ing, the Liv­ingston Enter­prise and the (Cham­paign-Urbana) News-Gazette. Con­tact Johnathan at jhett93@​gmail.​com and fol­low him on Twit­ter @jhett93.
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