Managing Environmental Contamination under the USDA National Organic Program Final Rule
Part One: Pesticide Residue Testing for Farms
By Jonathan Austin
The USDA NOP Final Rule, as contained 7 CFR 205 provides the regulations by which agricultural products may be certified and represented as organic in the United States. Generally the regulation prohibits the use of synthetic substances in the production of products to be certified and represented as organic. Additionally the regulation requires that accredited certifying agents engage in regular testing of certified organic products for the presence of prohibited substances.
Despite this requirement, no certifier currently engages in regular testing of certified organic products for the presence of prohibited substances--instead the testing conducted has been based upon complaints or other indications of noncompliance. While the NOP is currently attempting to develop a detailed program to be followed by certifiers in conducting residue testing, this requirement has yet to be finalized. Additionally, all draft measures which have been submitted to certifiers for comments have been based on a combination of random selection of certified products for testing and a risk based analysis for selecting products to be tested. The current thinking of the NOP does not appear to contemplate residue testing for all operations or all products.
The Significance of Positive Pesticide Residue Test Results
If the USDA does implement a requirement that certifiers conduct residue testing, there is some question of how positive results will be addressed. At its most basic, a positive test result is likely to lead to an investigation by the certifier and/or the USDA NOP as to the cause of the contamination. The outcome for the certified operation will hinge on three factors, the amount of contamination, the cause of the contamination, and whether or not the operation’s willful violation of the regulations led to the contamination.
If it is found that the contamination is the result of a willful or knowing application of a prohibited substance to the crop, then the most likely result is that the operation’s certification will be revoked. Additionally, the operation and its responsibly connected persons may face criminal and civil sanctions. Recently the owner of a certified organic operation was charged and convicted in federal court of willfully marketing non-organic products as organic and was sentenced to prison. Even civil sanctions can be severe—up to $11,000 per violation of the USDA NOP Final Rule.
If it is found that the contamination was inadvertent, having resulted from an unknown and unintentional application, the most likely results range from excluding the product from sale as organic to suspension or revocation of the operator’s certification.
If the contamination occurred as a result of unavoidable residual environmental contamination much hinges on the level of contamination present. The USDA has established, under 205.271, Exclusion from Organic Sale, of the USDA NOP Final Rule, that “(w)hen residue testing detects prohibited substances at levels that are greater than 5 percent of the Environmental Protection Agency's tolerance for the specific residue detected or unavoidable residual environmental contamination, the agricultural product must not be sold, labeled, or represented as organically produced. The Administrator, the applicable State organic program's governing State official, or the certifying agent may conduct an investigation of the certified operation to determine the cause of the prohibited substance.”
Unavoidable Residual Environmental Contamination
The Preamble to the NOP Final Rule also contemplates the establishment of levels of Unavoidable Residual Environmental Contamination (UREC), above which the product would be excluded from organic sale. However, the USDA has not acted on this intention and the current rule only mentions tolerances established by the Environmental Protection Agency (EPA). Although not stated in the rule, the Preamble appears to contemplate that action levels set by the FDA would function also function as thresholds for acceptable UREC levels.
The Preamble also contemplates the USDA NOP being able to suspend certification of an operation when the residues in product which exceed the 5% EPA tolerance, regardless of the cause. (“These levels will represent limits at which USDA may take compliance action to suspend the use of a contaminated area for organic agricultural production.”)
The USDA NOP Final Rule and the Preamble, when taken together, lead to a number of questions about addressing residue testing and UREC detectable in products which are certified or are considered for certification.
The NOP has put forward some suggested guidelines on residue testing and the interpretation of such tests and the effects of detection of residues, but it is not clear if these will be implemented as currently worded. The NOP is taking comments on the proposed guidelines and these comments may alter the final outcome.
Conclusions and Discussion
The operator of an organic farm, or an entity looking to assess the acceptability of a specific site for organic production should take note of the USDA’s approach to unavoidable residual contamination and the current trajectory of moving towards more comprehensive testing of organic products for pesticide residues. Obviously, any operator who is certified or is seeking certification must avoid the use of any prohibited substance, including prohibited pesticides. A failure to follow the dictates of the NOP Final Rule can have severe civil and criminal penalties. However, merely steering away from prohibited practices probably does not constitute a best practice, and operators must strive to set the bar higher.
As we have reviewed in this article, residual environmental contamination is an issue which operators must care about and be proactive in the management of growing operations and site selection of growing operations. A failure to include the potential for environmental contamination in the analysis conducted for new growing sites and management practices implemented on the farm can lead crops being excluded from organic sale, and revocation or suspension of organic certification. However, even for the most proactive of growers considering these issues, the issue of unavoidable residual environmental contamination leads to many difficult questions. For instance, while an operator is required to consider environmental contamination in their organic farm plan, do the USDA NOP regulations require an operation to conduct soil or residue testing? Do the USDA NOP regulations require the disclosure of such test results to the USDA or the certifier? Are the EPA tolerance levels the only levels which must be taken into account in such testing? What if a residue is detected but the EPA has set no tolerance level for that pesticide and the FDA has set no action level? Finally, are genetically modified organisms (GMOs) handled differently than pesticide residues under the USDA NOP regulations?
All of these are good questions, some of which lack clear answers. In our next article in this series we will address these questions and where clear answers are lacking give some suggestions on best practices.